Hodder v City of Charles Sturtnam No ERD-01-855 [2002] SAERDC 5 (4 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

07/12/2001.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for a carport - City of Charles Sturt - Residential 2B Zone - consent refused - proposed setback inconsistent with Principle 126 - existing local character influenced by buildings on or near road boundaries, topography and amenity impacts of public infrastructure - visual impact mainly confined to streetscape and built form relationship - carport on the road boundary in modified form in sufficient conformity with Council Wide Principles 21, 22 and Metropolitan Adelaide Objectives 9, 43 and Principle 9 - appeal upheld, Council's decision set aside and provisional development plan consent granted subject to conditions.

• Development Act 1993 ;
• Environment, Resources and Development Court Act 1993 ;
• Metropolitan Adelaide Road Widening Act 1972-1976 , referred to.
• McDonald's Australia Ltd v City of Payneham & Ors PAT No.151 of 1992, considered.

Representation

Appellant: SCOTT IAN HODDER
In Person

Respondent: CITY OF CHARLES STURT
Counsel: MR K TREDREA - Solicitors: NORMAN WATERHOUSE

ERD-01-855

Judgment No. [2002] SAERDC 5

4 January 2002

SCOTT IAN HODDER

v.

CITY OF CHARLES STURT

ERDC No. 855 of 2001

[2002] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By development application made pursuant to the provisions of the Development Act 1993, Mr Hodder ("the appellant") submitted a proposal to erect a carport on his land at 2/652 Grange Road, Henley Beach ("the subject land") to the Council of the City of Charles Sturt ("the Council"). In its original form, the carport so proposed was an open structure comprising a gable roof and colorbond metal decking and supports. The structure which is about 7.5 metres wide (for two vehicles) would extend from the existing garage to the Military Road boundary.

2. The Council considered the merits of the proposed carport and, in due course, refused the grant of provisional development plan consent. Its refusal is set out in its decision notification dated 19 July 2001. The notification provides the reasons for the decision of the Council in the following terms:-

"..... the proposed carport is not in accord with the requirements of Council Principle 126 (setbacks)."

3. Mr Hodder was aggrieved by the decision and appealed to this Court. There being no settlement reached at the conference held pursuant to Section 16 of the Environment, Resources and Development Court Act 1993, the matter proceeded to hearing.

4. When the parties came before the Court, Mr Hodder appeared on his own behalf and gave oral evidence. Mr Tredrea appeared for the respondent Council and called Mr Carey - a qualified and experienced planner - to give expert evidence.

5. The proposal before the Court is not the same as that presented to the Council. Although the differences between the proposal are material, they are not so different as would result in a change so substantial that would constitute an entirely new proposal.

6. The principal difference lies in the shape of the roof. The proposal now incorporates a flat roof with a gable section (about 2.3 metres wide at its base) located roughly about the centre of the structure. The gable section performs a decorative and style matching function as well as providing sufficient height for the occupants to negotiate a short but steep staircase leading from the carport into the rear yard of the dwelling.

7. There is no dispute between the parties that the provisions of Council Wide Principle 126 applies in this instance, which principle is in the following terms:-

"126 No building should be erected so that any portion of the building is nearer to the existing boundary of any street, road or thoroughfare or to the boundary of any land shown as being required for road widening on the Plan deposited under the provisions of the Metropolitan Adelaide Road Widening Plan Act, 1972-1976, than the distance prescribed for each road or portion thereof, in Column 3 of Table HeG/3."

8. The relevant part of Table HeG/3 is as follows:-

"Column 1 Column 2 Column 3

Road Portion of Road Affected Prescribed Distance

All roads (unless elsewhere Both sides 8 metres

specified) (2.5 metres for second and

subsequent boundaries where

there is more than one frontage)"

9. For the purposes of this appeal, the Council submitted that Military Road constituted the "second boundary" which term is to be found in Column 3 above. The relevant prescribed distance to be applied as the setback is therefore 2.5 metres. Military Road is not subject to the provisions of the Metropolitan Adelaide Road Widening Act 1972-1976.

10. The subject land is to be found on the south-western corner of the intersection of Military Road and Grange Road. It is one of two dwellings, located on the corner, generally in the form of semi-detached dwellings. The main body of the dwelling is on a raised platform, possibly on the remnants of a sand dune. It is an old dwelling but in a neat and tidy condition. It has a small garage, the base of which is level with Military Road. This garage is not large by any measure and I accept Mr Hodder's evidence when he said that it is not sufficiently large to cater for his car. I also accept that it would be difficult to modify it to the appropriate measurements. That said, such an impediment is not a deciding point.

11. The subject land is located in the Residential 2B Zone. In this zone, the proposed use is neither complying nor non-complying. A proper assessment of the proposal calls for the matter to be weighed against several provisions of the Development Plan other than Principle 126. Those provisions most relevant are as follows:-

RESIDENTIAL 2B ZONE

"Objective 1: A zone accommodating primarily detached, semi-detached and row dwellings."

Principles of Development Control

"1 Development undertaken in a Residential 2B Zone should be, primarily, detached, semi-detached and row dwellings; but, residential flat buildings and shops and offices which cater for the day-to-day needs of the nearby residents and having a total floor area not greater than 100 square metres may be suitable in certain parts of the zone."

"2 Development should not have a floor level greater in height than four metres above natural ground level."

COUNCIL WIDE

"Objective 1: An attractive living environment."

Principles of Development Control

"19 Residential development (excluding swimming pools, pergolas and other garden and landscaping structures) should not occupy more than one half of the site."

"21 Buildings should be designed to harmonize with the existing local character of an area in terms of form, mass, scale, colours and textures of materials, landscaping and set-back distances especially where the nearby area contains buildings of State or local heritage significance."

"22 Set-backs of buildings from road boundaries should achieve a satisfactory relationship to adjacent development and the streetscape. Set-backs from the side and rear boundaries should be related to the height of buildings, the length of their walls, and the size and location of their openings."

"23 Dwellings should be designed in such a way as to minimize overshadowing of adjoining allotments, and to ensure the maintenance of privacy enjoyed by adjacent property owners."

METROPOLITAN ADELAIDE

"Objective 9: Safe, pleasant, convenient and efficient residential zones."

"Objective 43: The amenity of localities not impaired by the appearance of land, buildings and objects."

Principle of Development Control

"9 Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live."

12. I have also had regard to Metropolitan Adelaide Objective 6 and Council Wide Principle 3.

13. The subject land is in an area of the Council where three zones intersect; the other two zones being the Residential 2A Zone and the Local Centre Zone (to the west and east of the subject land respectively). It would appear that the provisions for the setback of buildings from roads within these zones rely on Principle 126 for guidance as does development in the Residential 2B Zone within which the subject land is situated.

14. Mr Hodder's evidence emphasised the need for shelter for his vehicles and his inability to enlarge the existing garage. He advised the Court that he had made an attempt to design the structure with the architecture of the shops opposite and the new garage at No. 683 Grange Road in mind. He also drew the Court's attention to several other properties in the near vicinity of his that have building structures on or near the road boundary.

15. Mr Carey took a somewhat different view. His opinion may be summarised thus:-

•	The carport will dominate the streetscape - a problem somewhat exacerbated by the open character of the immediate locality.
•	There is little or no opportunity to provide landscaping to soften the appearance of the carport.
•	The carport becomes the primary visual focus of the property and therefore establishes a conflict with Principles 21 and 22, which speak about appropriate relationships between built forms.

16. Mr Carey acknowledges the existence of several other properties in his locality and in the general area of the development which were not in accordance with the provisions of Principle 126. One example, a carport with roller door at No. 683 Grange Road appears to have been built recently. Several other buildings, one in particular at 427 Military Road, exhibits substantial (albeit vertical) built form near the road boundary. Mr Carey did not consider those examples as sufficient support for the proposed carport. He reached this conclusion after considering the different design emphasis that each structure displays.

17. Mr Carey also opined that the problem with the appearance of the carport was in the main, observable from the public realm. If I understand his evidence correctly, he did not consider the appearance of the carport from the property immediately to the south - which property would have an elevated view of the proposed development - was of any consequence. I put to Mr Carey an alternative design approach which would employ an entirely flat roof and a cantilevered roof system thereby setting back the front supports a metre or so from the road boundary. Mr Carey considered those changes to be an improvement - more so the repositioned supports than the removal of the gable. Although he did not think those changes would gain his support, he acknowledged that the matter was "finely balanced" (transcript p.28).

18. The relevant provisions of the Development Plan provide guidance in respect of development that is not consistent with Principle 126 as is the case in this matter. When the relevant provisions are read as a whole, the design of the carport should, among other things, take into account and harmonise with the local character and amenity and generally achieve a satisfactory relationship with adjacent development and the streetscape. Principle 22 speaks about such a relationship in some detail and includes reference to the size and location of the openings in walls and buildings.

19. The character of the locality is influenced by a number of factors. The subject land is located on a relatively busy intersection. As a consequence, the public spaces adjacent Mr Hodder's property contains several traffic and pedestrian management devices. The devices are not visually appealing, an attribute of the public space not improved by the presence of several stobie poles. Furthermore, the relationship between the streetscape and development on adjoining properties in the area generally is influenced by the topography on the western side of Military Road. Development is perched on the remnant sand dunes, the consequence of which is the existence of low retaining walls on several properties near the Grange Road/Military Road intersection. In all, one is not left with an impression of an open and spacious relationship between public and private land. This impression is reinforced by several buildings (some being of substantial size and bulk) on or very near the boundaries of the properties on the corner of Military Road and Grange Road.

20. In all, that part of the character of the locality influenced by the nature of the buildings and streetscape in the near vicinity of the subject land does not, in my view, support the application of a 2.5 metre setback distance for the type of structure similar in nature to that proposed. However, this in itself is not a sufficient condition to allow the appeal. There are other factors to be taken into consideration. In particular, Principle 22 provides specific discretion to be afforded to the setback of buildings from road boundaries. In this respect it speaks about a satisfactory relationship being created between adjacent development and the streetscape.

21. It is intended that the structure remain open. When viewed from the east and from Military Road the visible elements will be mainly the support posts and purlins. The view from the north will be interrupted by the existing retaining wall and the recently planted hedge that is expected to grow a further one metre or so in height. When viewed from the adjoining property it is conceivable that the carport and in particular the gable roof may cause a visual impact. Any impact that may be considered adverse could be easily remedied by a simple redesign involving the removal of the gable, the consequence of which will be a flat roofed structure.

22. The extent to which the structure may impact on the streetscape to achieve a satisfactory relationship referred to in Principle 22 may also be assessed in light of those structures that are permissible in the locality. The former Planning Appeal Tribunal decision in McDonald's Australia Ltd v City of Payneham & Ors PAT No.151 of 1992, at 75 said:-

"..... when dealing with forms of development which are neither 'permitted' nor 'prohibited' in a zone, ..... it is not improper, when considering whether such a development should be authorised, to judge it, to some extent, having regard to the nature and attributes of development which would be 'permitted'."

23. It is in this respect that I take the following into account. From both public and private spaces (from which this part of the subject land can be viewed) a proposal in an amended form as described above, in my view, would have less visual impact than would a complying development with a solid building form (eg. an extension to the existing semi-detached dwelling) employing a hipped or gable roof and setback a distance of 2.5 metres and 0.3 metres from the road and side boundaries respectively in accordance with the complying development standards for building setbacks in Table HeG/3 and for a semi-detached dwelling in Table HeG/1.

24. When all of the above considerations are taken together, the implementation of the 2.5 metre setback as provided for in Principle 126 is not a necessary condition for the proposed carport to be in sufficient conformity with the relevant provisions of the Development Plan. In particular I am of the view that an amended design - an approach canvassed by me during the course of the hearing and accepted by Mr Hodder - will result in a built form that is in harmony with the local character and appropriately related to other buildings and the streetscape. Although the additional built upon area may exceed the site coverage limitations imposed by Principle 19, such a departure, in this instance, is not so significant in magnitude or impact as to warrant refusal.

Decision

25. The appeal is upheld, the decision of the Council is set aside and provisional development plan consent is granted for the construction of the carport in the location and of the dimensions indicated on Folio 12 of Exhibit A1 subject to the following design changes:-

(i)	The gable roof section be removed and be replaced with a flat roofed section consistent with the remainder of the carport; and

(ii)	The support posts adjacent Military Road be setback one metre from the road boundary.

26. This decision is based upon the height of the carport and the colour of the materials being maintained as proposed. However, it may be necessary to vary the extent of roof area to enable appropriate access to the staircase adjacent the existing garage.

27. There will be an order accordingly.