Australia (Hk) Building Company v City of Burnside No ERD-01-1430 [2002] SAERDC 58 (26 June 2002)

Last Updated: 28 September 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

09/05/2002, 24/06/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for the construction of two semi-detached dwellings - City of Burnside - Residential R550 Zone - consent refused by Council - issues confined to design, compatibility with the streetscape and compliance with Principle 29 of the Residential R550 Zone - locality comprised of two components - the characteristics of that part of the locality having undergone recent redevelopment should be afforded some weight when assessing the compatibility of the proposed development within its context - some weight afforded to those quantitative standards which bear upon the issues of bulk and scale - failure to comply with Principle 29(b) acknowledged but found insufficient as a ground for refusal when considering all relevant matters - the proposal, in an amended form, sufficiently consistent with the Development Plan to warrant consent - provisional development plan consent granted subject to 6 conditions.

• Development Act 1993 ;
• Environment, Resources and Development Court Act 1993 , referred to.

Representation

Appellant: AUSTRALIA (HK) BUILDING COMPANY
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF BURNSIDE
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

ERD-01-1430

Judgment No. [2002] SAERDC 58

26 June 2002

AUSTRALIA (HK) BUILDING COMPANY

v.

CITY OF BURNSIDE

ERDC No. 1430 of 20001

[2002] SAERDC 58

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. In May 2001 the appellant submitted to the Council of the City of Burnside ("the Council") a development application for the construction of two semi-detached dwellings on the land situated at 34 Edgcumbe Terrace, Rosslyn Park ("the subject land"). To implement the proposal, the dwelling, carport, outbuilding and swimming pool which now occupy the land will require demolition and removal.

2. Upon receipt, the Council classified the proposal a Category 1 form of development. In these circumstances the Council is not required at law to notify property owners and occupiers in the near vicinity of the subject land of the proposed development. However, it did so and received responses from three persons.

3. In due course Council considered the merits of the proposed use and refused the grant of provisional development plan consent. In reaching its decision it took into account a report prepared by a member of its staff, which report recommended approval subject to the imposition of nine conditions. The Council informed the appellant of its decision by way of a decision notification dated 19 October 2001. The notice also included its reasons for reaching its decision in the following terms:

"It is significantly at variance to [sic]:

Metro Adelaide: Objective No 9

Metro Adelaide: Principle of Development Control No 15

Council Wide: Objectives No 5, 11(b) & (c) and 28

Council Wide: Principle of Development Control No's 18(b)(1), 23,

29(b), 121(b), (c) & (e) and 124(a)

Residential R550 Zone Objective 1

Residential R550 Zone Principles of Development Control No's 6(a) and (b)"

4. Being aggrieved by this decision the Australia (HK) Building Company 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.

5. The plans before the Court are not the same as that considered by the Council and upon which the decision of the Council is based. Exhibit A1 is the version of the proposed development which forms the basis of this action. In relation to that which was first considered by the Council, Exhibit A1 has incorporated within it the following amenments:

1.	The rear of Dwelling B (the southern dwelling) has been redesigned to accommodate the retention of an existing significant tree.
2.	The finished floor level ("FFL") of the rear sections of Dwellings A and B has been raised from a reduced floor level of 100.85 to 102.00. This amendment will enable the use of pier and beam footings as a means of avoiding damage occurring to the tree referred to above.
3.	The road-to-building (main face) setback has been increased from 10 metres to 11 metres with some minor alterations to the driveway and landscape design in the intervening space.

6. When the matter came before me, Mr Manos represented the appellant and Mr Hilditch represented the respondent Council. The Court received several exhibits, viewed the subject land and its locality and heard evidence from Ms Sonia Manley and Dr Satish Gupta, both being qualified planners.

7. The subject land has a frontage of 18.28 metres to Edgcumbe Terrace, a depth of 60.96 metres and an area of 1,114.40 square metres. It is more particularly described in Certificate of Title Volume 5158 Folio 460. The land slopes upward from the road, starting at a reduced level of 99.00 and rising to about 103.00 (a slope of around 1:15). It is occupied by a single storey cream brick dwelling and attached carport, outbuildings and a swimming pool. The subject land has two vehicular entranceways linked by a semi-circular driveway. The principal dwelling is setback about 14 metres from the road boundary, the intervening space being occupied mainly by the (hard paved) driveway and small areas for shrubs and groundcover. A masonry fence about 1.8-2.0 metres high extends along the northern boundary adjacent the carport.

8. A significant tree is located in the rear yard of the subject land. There is a large street tree (being one forming an avenue of trees in Edgcumbe Terrace) located roughly centrally to the width of the subject land. A large tree, possibly a significant tree, located in the front yard of No.36 Edgcumbe Terrace, overhangs the subject land.

9. The proposal involves the construction of two symmetrical semi-detached dwellings on two levels. The lower level comprises two double garages ("undercroft" style) served by two driveways (merging into a single paved area) having a slope of about 1:12. The FFL of the garages is 98.15. The two dwellings are built atop the garages. The front portion of the dwellings has a FFL of 100.85 and the rear section an FFL of 102.00. Each dwelling has three bedrooms, family/meals/kitchen area, dining/living area and the usual amenities. The main bedroom of each dwelling faces Edgcumbe Terrace and has access to a balcony which extends across most of the frontage of each dwelling. Pedestrian access to each dwelling is by way of pathway and steps from their main driveways and entry hall adjacent the northern and southern boundaries of the subject land. Two internal courtyards are provided for each dwelling.

10. Other features of some interest in this matter include:

•	The future boundary separating each dwelling will be delineated in part by a low masonry wall on the front driveway;
•	The width of the driveway for each dwelling at the road boundary is 4 metres;
•	The masonry fence along the northern boundary is to be removed and replaced by a fence more suited to the circumstances; and
•	The tree which overhangs the subject land may need trimming in the event that the proposal were to proceed.

11. The relevant statistics for the proposed development are as follows:

Dwelling A (north) Dwelling B (south)

Site Area 557 square metres 557 square metres

Floor Area 261 square metres 245 square metres

Floor Area Coverage (%) 36% 33.2%

Total Floor Area Ratio 47% 44%

Private Open Space 187.5 square metres 228.6 square metres

Site Coverage (%) 47% 44%

Frontage 9.1 metres 9.1 metres

Setback

- Street (main face) 11.0 metres 11.0 metres

(balcony) 10.0 metres 10.0 metres

- Side 1-2.6 metres 1 metre

12. The subject land is located within the Residential R550 Zone in the Development Plan for the City of Burnside. The relevant version of the Development Plan is dated 1 February 2001. The subject land and zone is depicted on Map Bur/5.

13. The purpose of the zone is established by a single objective, which is in the following terms:

RESIDENTIAL R550 ZONE

"Objective 1: A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact."

14. There are nine principles of development control for the Residential R550 Zone. An examination of Principles 8 and 9 reveals that semi-detached dwellings are neither a complying nor non-complying form of development. Therefore the proposal falls for consideration of its merits against all relevant provisions of the Development Plan.

15. Relevant zone principles are as follows:

"2 Any site for the accommodation of a semi-detached dwelling should have an area of no less than 375 square metres and a frontage of no less than nine metres."

"6 Any development comprising a dwelling or dwellings in any configuration (including any carport or garage but not including any verandah, pergola or other garden structure) should:

(a) have a bulk and floor space appropriate to the character and amenity of the locality in which the land is situated;

(b) provide space around buildings arranged in a manner which will reasonably maintain and enhance the predominant character and amenity of the locality in which the land is situated and provide landscaping opportunities consistent with that character and amenity;

(c) in no circumstances:

(i) have a floor area (measured from the external faces of the walls of the building) in excess of 40 percent of the site area of each dwelling;

(ii) cover more than 60 percent of the site of the development with buildings, driveways and car parking areas; and

(iii) have a total floor area (measured from the external faces of the walls of the building at each floor level) contained in any dwelling where there is a floor level directly above another floor level exceeding 50 percent the site area of that dwelling; and

(d) should provide on the site of any dwelling private outdoor living space:

(i) equivalent to half the floor space of the dwelling suitable for the exclusive use and enjoyment of the occupants of that dwelling;

(ii) directly accessible from that dwelling and capable of enabling an extension of the function of that dwelling for relaxation, dining, entertainment, recreation, children's play and the other functions ancillary to the residential use of the site;

(iii) located and screened to provide reasonable privacy from dwellings or private open space on adjoining premises;

(iv) which has a minimum dimension of 2.5 metres; and

(v) one part of which is capable of containing a rectangle measuring not less than five metres by eight metres."

"7 Buildings should be set-back from site boundaries (not being frontages to a road), in a manner which will avoid adverse impacts such as:

(a) overshadowing;

(b) overlooking;

(c) loss of privacy; and

(d) undue enclosure of private open space, and in the development of a site not having two or more intersecting road frontages:

(i) the sum of the set-backs from the side boundaries to any part of the external walls of a building with a floor level less than 1.5 metres above natural ground, should not be less than two metres; and

(ii) any part of the external wall of any building having a floor level greater than 1.5 metres above natural ground level, should not be less than four metres from any side boundary of its allotment."

16. Those provisions in the Council Wide and Metropolitan Adelaide sections of the Development Plan of particular relevance are as follows:

COUNCIL WIDE

"Objective 11: Residential development which:

(a) promotes the efficient use of urban infrastructure and services;

(b) increases the density of dwellings in appropriate areas and in a manner which retains the essential and varying elements of the character of the council area;

(c) provides dwellings of a high standard of design and siting to ensure a high level of amenity, privacy and security for their occupants and neighbours;

(d) take advantage of solar energy; and

(e) promotes and retains community identity."

"Objective 17: Adequate provision for the parking of vehicles."

"Objective 28: A high standard of design in respect of the appearance of development."

Principles of Development Control

"19 In the development of dwellings:

(a) there should be a screened area of dimensions and a size which will enable, practically, clothes drying and the storage of household garbage receptacles to take place for use with each dwelling and with convenient access to that dwelling;

(b) there should be access through a carport or garage with that dwelling or otherwise, other than through the dwelling, to the enclosed private yard of that dwelling of sufficient height and width to maximize access to and use of that yard space; and

(c) there should be provided on the site of any dwelling, a parking area or areas of sufficient size for two cars:

(i) including a covered area sufficient for the parking of one car; and

(ii) with one additional parking space for each two rooms, in excess of three rooms which may reasonably be used as bedrooms."

"21 Access driveways which service two or more dwellings should be constructed to a width appropriate to the number of dwellings being serviced by the driveway and should be not less than:

(a) 3.5 metres for two dwellings; and

(b) 4.5 metres for three or more dwellings provided that such driveways are widened at appropriate locations to a width of not less than six metres to:

(i) provide adequate manoeuvring areas to avoid the need for vehicles to reverse through or off of the site of the development; and

(ii) to provide adequate opportunity for the safe and convenient passing of two vehicles."

"23 The space between buildings in residential areas as viewed from the street, should be compatible with the predominant character of the streetscape to which the building relates."

"26 The set-back of a building from the boundary of a road, or the boundary of any land shown as being required for road widening on a plan deposited under the provisions of the Metropolitan Road Widening Plan Act, 1972, should:

.....

(e) not in general be less than:

(i) three metres in the Residential R350 Zone;

(ii) six metres in the Residential R450 and Residential R550 Zones; and

(iii) eight metres in the Residential R625 and Residential R750 Zones."

"29 Dwellings and buildings associated with the development of dwellings should be designed and constructed in a manner and of materials which will positively contribute to any streetscape to which the development relates by the avoidance of:

(a) large blank walls facing a street;

(b) garage or carport doors facing a street the individual or aggregate width of which exceeds more than one-third of the width of the site of the dwelling measured at the front alignment of the building;

(c) garages or carports extending forward from the front of the dwelling in a manner which dominates or detracts from the appearance of the development; and

(d) materials which present either excessively bland or strident appearance."

"115 No building should be designed or located in a manner which will create significant overshadowing of the windows of an adjacent dwelling or any outdoor living area with an adjacent dwelling."

"121 Each building should be located and designed in respect of its:

(a) height;

(b) size;

(c) scale;

(d) colour;

(e) form;

(f) siting;

(g) architectural style; and

(h) materials of construction, to harmonize with conditions desired as indicated by the objectives or principles of development control for the relevant zone, or otherwise the predominant character of other buildings in the locality."

"124 Landscaping, including the establishment of plant species suited to the land, should be provided and maintained with development in order to:

(a) complement the landscaping provided by adjacent development and enhance the visual appearance and character of the area;

(b) shade, define and create windbreaks for pedestrian paths and spaces;

(c) screen, shade and enhance the appearance of car parking areas; and

(d) screen service yards, loading areas and outdoor storage areas."

"138 Building development on a site with frontage to a road, where that development is:

(a) large in bulk or height in comparison with other buildings with frontage to the same road;

(b) to have a highly reflective or brightly coloured external surface; and

(c) not well screened from view by vegetation, land form or other buildings, should be set-back from the road frontage further than other nearby buildings with frontage to the same road, so as to minimize the visual prominence of the building when developed."

METROPOLITAN ADELAIDE

"Objective 42: The amenity of localities not impaired by the appearance of land, buildings and objects."

Principles 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."

"11 Landscaping of development in residential zones should:

(a) enhance residential amenity;

(b) screen storage, service and parking areas;

(c) provide protection from sun and wind; and

(d) not unreasonably affect adjacent land by shadow."

17. Of some relevance also in this matter are Metropolitan Adelaide Objectives 6, 7, 8 and 9 and Principles 3, 10, 13 and 14 and Council Wide Objectives 1, 2, 4, 5, 10 and 16 and Principles 3, 17, 56, 60 and 116(c).

18. Both planning experts prepared a locality plan for the purposes of this appeal. Although Ms Manley's locality is a little more extensive than Dr Gupta's nothing in this matter turns on the difference. A locality appropriate to the circumstance includes properties located about 100 metres north and south of the subject land and would also include one or two properties in Park Street (southern side) and the rear of three or four properties with a frontage to Penfold Road and in the near vicinity of the rear of the subject land.

19. The locality is comprised of the following principal features:

•	A predominance of single storey detached dwellings and two-storey dwellings probably built during the 1970's and 1980's.

•	Setback distances from roads vary from 8 metres to 12 metres.

•	Setback distances between buildings and property boundaries can be as small as one metre but can also be several metres.

•	Older dwellings served generally, but not exclusively, with single driveways and more recent dwellings having two garages and double driveway widths.

•	The streetscape is notable for its wide verges and occupation with many large "lemon scented" gums so planted to produce a quite dominant north-south avenue.

20. Within those general features, two components to the locality emerge. The first comprises the suburb's early development with dwellings in various architectural styles popular in the 1970's and 1980's. This component is mainly, but not exclusively, to the south and west of No.38 Edgcumbe Terrace. The second component comprise some allotments in the northern sector of the locality that have been subject to or are undergoing redevelopment with forms of housing, the design and disposition of which is markedly different from that established originally. One such example is No.38 Edgcumbe Terrace, which is 20 metres or so south of the subject land. In 1997 a pair of semi-detached dwellings were constructed on that site. There appears to be close similarities between this development and the proposed development in terms of general architectural style, garaging, driveways, setbacks, landscape area, height and bulk.

21. Immediately north of the subject land is a development currently under construction. It comprises four dwellings arranged roughly symmetrically around a central driveway. Residence 2 is located such that its garage wall is on the common boundary with the subject land. Its floor level is roughly similar to that proposed in the front section of the proposed development. Residences 3 and 4 are to the rear of that site, are single storey and have floor levels roughly the same as the rear section of the subject proposal. Residence 1, the northern most dwelling, is a two level house (the lower level being undercroft garaging) and has a floor level (of the main living area) at or slightly higher than the front section of the proposed development. Residences 1 and 2 are setback about 9 metres from Edgcumbe Terrace. The architecture of this development has parallels with that proposed.

22. On the corner of Park Street and Edgcumbe Terrace, two detached dwellings have been constructed on land that hitherto accommodated a single dwelling. Again, the architectural styling has parallels with that proposed in the matter before me.

23. Emerging in this second component is a character quite different from that in the remainder of the locality. The principal differences are to be found in the architecture, materials of construction, the configuration of driveways and front landscaping and setback distances from side boundaries.

24. In its decision notification, the Council asserts that the proposed development is in conflict with several provisions of the Development Plan. However, when those reasons and Mr Hilditch's submissions are closely examined it is evident that the Council considers that the proposal, by virtue of certain design elements, will constitute a building form that is incompatible with the predominant character and the streetscape setting of the locality and will thereby impair its amenity. Having carefully considered Mr Hilditch's submissions, the incompatibility, it seems, is derived from the scale, bulk and form of the building, the width of the garages, the space around the building and area for landscaping.

25. I did not detect in Mr Hilditch's submission, any dispute as to the suitability of the subject land for its change of use from a detached dwelling to a semi-detached dwelling. Neither of the expert planning witnesses raised issues in this respect.

26. At the outset I was informed that the parties had agreed that the driveway design (width, slope and general configuration) met appropriate standards and therefore the introduction of evidence of a traffic engineering expert nature was not necessary for the proper resolution of the matter. I accept those submissions in respect of the plans now before the Court (Exhibit A1).

27. With the exception of General Principle 29(b), both expert planning witnesses agreed that the proposal complied with the relevant numerical guidelines. Principle 29(c) calls for the aggregate garage width not to exceed one-third of the width of the site. The proposed development, having an aggregate width of about 53% of the width of the subject land, exceeds the guidelines in this principle by a considerable extent. In this respect, Ms Manley in her statement (at p.15) said this:

"It is my opinion that the garaging does not detract from the proposal and does not lead one to view that the proposal should not proceed by reason of failure to comply with this provision. There are various elements of the design including the central columns and the vertical and horizontal detail of the individual panels, which are consistent with the design of the dwelling and these elements will contribute to the minimisation of the streetscape impact. In addition to this, the panels are setback 11.0 metres, which is considered a reasonable distance and is further than the 6.0 metre desired standard of the Development Plan. The garages have a lower floor level and will not be highly visible from the street as they sit well below the level of the road, similar to that of 38 and 38A Edgcumbe Terrace. Substantial landscaping is proposed to the front of the two dwellings including a large street tree, which will minimise the impact of the garaging. Finally [the] ground floor which is situated on top of the garage including the balconies, which protrude 1.0 metre forward of the existing dwelling will assist in de-emphasising the garage element of each dwelling.

The undercroft garages are not out of character within the locality as there exist four singles separated by columns (similar to the proposal) at 38 and 38A Edgcumbe Terrace and a dwelling with undercroft garaging is being established at 30-32 Edgcumbe Terrace."

28. When his opinions are distilled it appears that Dr Gupta attributes almost the entire failure of the proposed development (in its circumstances) to comply with the relevant provisions of the Development Plan to the presence of the garage doors of the proposed width. In his view, were the building to remain the same as that proposed in terms of face area and volume (ie. its scale and bulk) but it be altered to enable one garage per dwelling, it would satisfy the relevant provisions of the Development Plan. By doing so, he said, more land would be available for landscaping. Dr Gupta also raised in his statement a conflict between certain other design aspects (eg. the use of plinths and tall windows and the absence of eaves) and the predominant character of the locality. However, I did not gain the impression that these were aspects that weighed heavily in his final conclusions.

29. I have carefully examined all that has been put before me and have examined the subject land and the locality defined for the purposes of this appeal. When distilled to its essence, the planning issues principally focus on the extent to which the proposed development (having regard, in particular, to the provisions of Council Wide Principle 29(b)) is:

(a)	compatible with existing dwellings in terms of scale and streetscape impact (Zone Objective 1);
(b)	has a bulk and floor space around the building appropriate to the predominant character and amenity of the locality (Zone Principles 6(a) and 6(b) and Council Wide Principle 23); and
(c)	contributes positively to the streetscape and the locality generally (Council Wide Principle 18(b)(i)).

30. In so stripping away the complexities of the dispute to its bare essentials I have not ignored the more extensive list of matters with which Council finds conflict, which list is contained in the Council's decision notification.

31. I have also taken into account that neither the Council in its submissions nor its expert witness finds an inconsistency between the proposed (generic) use of land for semi-detached and those provisions of the Residential R550 Zone, which expressly encourage a range of dwelling types being established within it (Objective 1) nor the general provisions which speak about providing a variety of dwelling choice (Council Wide Objective 7). Nothing was raised during the course of the hearing that would cause me to find to the contrary in this respect. It is well established that most residential zones in the Development Plan for the Council (R350, R450, R500 and R625 Zones) provide the potential for the establishment of all forms of residential development subject to compliance with qualitative and quantitative provisions.

32. Previous matters before this Court have also established that many forms of development contemplated for the zone that are in full compliance with its quantitative standards may, nonetheless, be atypical of that which characterises the particular locality in which the development is proposed. Furthermore, the presence of atypical aspects of any development should not be the sole reason for its failure to gain consent nor should it obviate the introduction of new forms of development. Where such circumstances prevail, a planning judgment must be made having due regard to all provisions of the Development Plan and, in particular, the extent to which the proposal fits with the desired character of the locality.

33. As I have said, the locality has within it two components. I do not consider the amenity of the established component particularly high. It is certainly pleasant but generally unexceptional. Although most dwellings are well kept there is evidence of under-maintenance of several buildings and their curtilages. This component also comprises a variety of architectural styles. Most front yards are open but in some cases they are "encased" behind fences of different styles and heights (mainly on the western side). The most consistent feature of this part of the locality would be the relatively generous distances between each building, the setback distances from the road boundary and the sub-ordinancy of garages/carports and driveways within the streetscape. However, to a considerable extent the streetscape that might emerge from these characteristics is subordinated by the impact of the large and visually dominant street trees.

34. These characteristics are to be contrasted with the northern section of the locality, which commences at No.38 Edgcumbe Terrace. The most striking difference is in the architectural style and the type and colour of materials (often referred to as a "Tuscan" style but in reality a mixture of styles and architectural vernacular). As a consequence of this form of redevelopment, the character of this component of the locality is materially different from that further south. The space between buildings is generally smaller occasioned, in part, by much smaller site areas and frontages and the larger building size. A notable example is the garage wall on the northern boundary of the subject land (which wall forms part of the adjacent development approved by the Council in January 2002). Other differences show that garages and driveways generally are much more prominent (or less subordinate) as is the accommodation of vehicles within undercroft parking arrangements.

35. That the proposal fails, to a substantial degree, to comply with Principle 29(b) is not in dispute. Are the consequences of this failure (which, in Mr Hilditch's submissions, is exacerbated by the marginal compliance with the allotment width) such as to bring the proposal into conflict with those provisions mentioned earlier having regard to the character, amenity and streetscape elements of the locality? Having considered all relevant matters in this respect, I have concluded as follows:

•

The characteristics of that part of the locality having undergone recent redevelopment should be afforded some weight when assessing the compatibility of the proposed development within its context. By its own hand and in recent times, the Council has allowed in the northern part of the locality the establishment of built forms that are in quite stark contrast - in terms of architectural style, scale and built form character - to that which exists further south. The subject land is within, rather than at the edge, of this component of the locality.

•

I acknowledge, but in the circumstances respectfully disagree with Mr Hilditch's submissions that to find in favour of the proposal on the grounds that it is very similar to that which exists at 38 Edgcumbe Terrace is "to tread a treacherous path". Implicit in Mr Hilditch's submissions is that that development is unsuitable in its context and should not have been approved. Granted, its architectural style is different than those dwellings further south and west, and while no evidence was placed before the Court in respect of that which it replaced, I have little doubt that the current building is of a substantially larger scale. However, I can find little in that dwelling which is offensive as a dwelling, as a place to live or generally within the streetscape. To a large extent, the attributes which render No.38 Edgcumbe Terrace acceptable in its context (generous setback of 11 metres or so, architectural detailing/shadow/texture) are present in the matter the subject of this appeal.

•

Mere compliance with the quantitative standards is insufficient reason to find in favour of the proposal. However, some weight should be afforded to the degree of compliance with those measures that bear upon issues at the heart of this dispute. Those quantitative standards which all have a bearing on bulk and scale (site area, floor area coverage, total floor area ratio and site coverage) are well within the minimum limits. Nothing was put before me to suggest that these standards were not generally appropriate in the circumstances prevailing in the locality. Furthermore, it cannot be said that compliance with the side setback distance (2 metres cumulative - Zone Principle 7) has been necessitated by the setting-down of the garages below street level, thus avoiding a more stringent setback distance. A close examination of Exhibit A1 reveals that it would still comply were it to be raised 600mm - in which case the FFL of the garage would approximate the level at the road boundary (thus enabling a driveway to be established with a slope that would be barely perceptible).

•

The façade of the proposed building is highly articulated, achieved through the use of several façade planes, horizontal emphases, decorative balustrades, steps/windows and doorways, varying rooflines and balconies. This form of architecture and the setback (which amounts to a distance approaching twice that called for in Principle 26(e)) both act to reduce the impact from the streetscape and, generally, the scale of the building.

•

Having regard to the foregoing and all of the circumstances in the locality, I find the bulk and scale of the proposed development is acceptable and in sufficient conformity with Principle 6(a) and (b) and Principle 23. To some extent the development suffers disadvantage in respect of its juxtaposition with the development recently approved and now under construction immediately north of the subject land. However, the arrangement of the existing building immediately to the south (No.36 Edgcumbe Terrace) is such that the distance between the main building on that property and Residence B in the proposed development would exceed that generally evident in the locality. Furthermore, Exhibit A1 when adjusted for the amended FFL of the rear section of the proposed development indicates high compatibility between the height of the roof of the proposed development and the roof heights of its neighbours.

•

I find also that the proposed development, with appropriate amendment, will be consistent with the provisions of Council Wide Principle 18(b)(i). The purpose of the amendment is broadly to increase the quantity and quality of landscaping in the front of each dwelling. As a matter of fact, the current lawful use is characterised by the extent of hard surfaces (occasioned by two entranceways and a large circular driveway) and lack of "soft" landscaping in its front yard and a dwelling, while reminiscent of the 1960's in style, which could not be construed as one making a positive contribution to the amenity of the locality. Further, within the northern component of the locality, garages and their driveways have become a more dominant feature in the streetscape. Granted, there may be other developments of a different design and scale that could be established on the subject land that could make a better contribution to the streetscape than the matter now before me. However, the proposed development will improve the visual amenity that presently exists in respect of the subject land, will be generally compatible with its rear neighbours and will not, in my view, be in conflict to any substantial extent with the present level of streetscape appearance and amenity elsewhere in the locality.

36. The amendments that are appropriate are these:

Ø	The deletion of two garage doors per dwelling and their replacement with one door per dwelling, each of which spans no more than two standard widths (ie. 4.8 metres)
Ø	The driveway to each dwelling being narrowed to enable a landscape area of around 1.5 metres being established between each garage and to link with the landscaped area proposed on Exhibit A1.
Ø	The area available for landscaping on each site being increased by:
§	Narrowing the width of the driveway to the minimum necessary for a single vehicle to enter each site.
§	Repositioning the steps and pathway to enter each dwelling to a position adjacent the garage doors (ie. deleting the notional pathway thereby increasing the area available for landscaping).
Ø	A landscape plan being prepared by a qualified and experienced landscape architect or designer.

37. I have given thought to the merits of raising the FFL's of the proposed development as suggested by Mr Manos. It seems to me that the consistency that now exists between the roofline of the proposed development and the new and existing development north and south of the subject land respectively is an important aspect in the overall assessment of the proposal against the background of the streetscape. Accordingly the FFL's should remain unchanged.

Decision

38. For the foregoing reasons, I advise the parties in my memorandum delivered on 28 May 2002 that appropriately amended, the proposed development would be in adequate conformity with the relevant provisions of the Development Plan. However, I advised the parties that my final decision would be reserved until the Court received an amended site plan and landscape plan, which adequately meets the purposes previously outlined.

39. When the parties came before me on 24 June 2002 Mr Manos tendered amended plans. Exhibit A4 is a series of seven plans detailing the development similar to that contained in Exhibit A1 but amended in response to the matters raised in paragraph 36. Exhibit A5 is a separate landscape plan also tendered in response to the matters raised in paragraph 36.

40. Mr Hilditch tendered a set of draft conditions (Exhibit R4), which conditions were settled between the parties.

41. I have considered the amended plans and draft conditions now before the Court and find that the development so proposed warrants the grant of consent. Accordingly, the appeal is allowed, the decision of the Council is reversed and provisional development plan consent is granted for the construction of two semi-detached dwellings at 34 Edgcumbe Terrace, Rosslyn Park (Development Application No. 180/00493/01/CA) subject to the following conditions:

1.	The proposal shall be undertaken in accordance with the details submitted with and forming part of Development Application No. 180/00493/01/CA and the plans marked Exhibit A4 and the landscape plan marked Exhibit A5 except where altered by the following conditions.

2.	The proposed bench levels appropriate to the finished floor levels shown on the subject proposal plans are to be indicated on the plans submitted to Council for Provisional Building Rules Consent.

3.	Soil levels and topography surrounding the Lemon Scented Gum shall not be altered in any way, and all reasonable attempts shall be made to avoid compaction of the soil within 6 metres of the root zone/dripline of the tree's canopy.

4.	The landscaping shown on the approved plans shall be established to the reasonable satisfaction of Council prior to the occupation or use of the development herein approved and shall be maintained in good health and condition at all times.

5.

An appropriate form of temporary fencing shall be erected around the base of the street tree to the reasonable satisfaction of Council prior to the pouring of concrete associated with the proposed development. The type of fencing, and its distance from the base of the tree(s), shall be confirmed in writing by Council's Tree Preservation Officer prior to any work being commenced on site and such fencing shall remain in place for the full period of construction work.

6.	No equipment, debris or building rubble is to be discarded or stored within 3 metres of the base of the street tree at any time.

42. There will be an order accordingly.