Wittwer & Phipps v Corporation of The Town of Gawler & Anor No ERD-02-438, ERD-02-439 [2002] SAERDC 79 (6 November 2002)

Last Updated: 10 November 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

22/07/2002 to 23/07/2002, 05/11/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for two shops and the conversion of a dwelling into veterinary consulting rooms - Town of Gawler - Residential 2G Zone, Willaston Historic Policy Area - consent granted - third party appeal - impairment to amenity, traffic safety, appropriateness of retail use the principal matters in dispute - the Council's retail structure and policies considered - nearby designated centre considered - proposed use not a major shopping development - nearby designated centre not likely to fulfil its intended function - lack of coherent retail structure in the Council area - zone intended to cater for a mix of land uses - no evidence of unsafe traffic movements - on-street improvements to sight distance a consideration - no impairment to amenity found consequential on amendments to the proposal plan - amended plans submitted - appeal dismissed - consent granted subject to (a varied list of) conditions.

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

Representation

Appellant: MR C G WITTWER
In Person

Appellant: MR B PHIPPS
In Person

Respondent: THE CORPORATION OF THE TOWN OF GAWLER
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Respondent: ONTALI PTY LTD
Counsel: MR P WHIMPRESS - Solicitors: BOLTONS LAWYERS

ERD-02-438, ERD-02-439

Judgment No. [2002] SAERDC 79

6 November 2002

C G WITTWER (438/02); B PHIPPS (439/02)

v.

THE CORPORATION OF THE TOWN OF GAWLER

and

ONTALI PTY LTD

ERDC No.'s 438 & 439 of 2002

[2002] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By development application dated 16 July 2001, Habitable Places, on behalf of Ontali Pty Ltd, applied to the Corporation of the Town of Gawler ("the Council") to construct two shops and convert the existing residences into veterinary consulting rooms on the land situated at 7-9 (Lots 1 and 76) Main Street, Willaston. Upon receipt, the Council treated the proposal as a Category 3 development and issued the appropriate notification. A number of representations - in the nature of objections - were received. Mr C G Wittwer and Mr B Phipps ("the appellants") were two such representors.

2. On 30 April 2002, the Council decided to grant provisional development plan consent to the proposed development subject to 17 conditions. In reaching its decision it gave consideration to certain amendments to the proposal, the written and verbal representations including those of Mr Phipps and Mr Wittwer and a report prepared by a person in its employ. It also had regard to advice that it had received from Transport SA and Telstra.

3. Mr Wittwer and Mr Phipps were aggrieved by the decision of the Council to grant provisional development plan consent and appealed to this Court. As no settlement was 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 matter came before me, Mr Wittwer and Mr Phipps appeared on their own behalf and Mr Leydon and Mr Whimpress for the Council and Ontali Pty Ltd respectively.

5. During the course of the hearing a view of the subject land and land in the near vicinity was conducted as well as a "windscreen inspection" of several small retail establishments in various parts of the area of the Council. Several exhibits were tendered and evidence was given by the following:

•	Mr Wittwer (the owner of 27 Drury Street - adjacent the eastern boundary of the subject land)
•	Mr Phipps (the owner of 11 Main Street - adjacent the northern boundary of the subject land)
•	Mr Woods (architect)
•	Mr Wohlstadt (town planner)
•	Mr Gladigau (town planner)
•	Mr Stack (of the proponent company)
•	Mr Willbery (traffic engineer)

The Subject Land

6. The subject land is more particularly described as Allotment 1 (Filed Plan 1671) and Allotment 76 (Filed Plan 154577) and delineated in Certificates of Title Volume 5316 Folio 88 and Volume 5299 Folio 57. It has an area of about 2,400 square metres (43 metre frontage and depths varying from 55.37 to 55.92 metres).

7. The subject land is occupied by an old freestone building immediately adjacent Main Street and an older dwelling immediately behind it. The two dwellings are linked with a pergola. Together these buildings are intended to be used as veterinary consulting rooms.

8. An old stone wall and brick pillars define the majority of the boundary line adjacent Main Street. The wall appears to have been the subject of repair. Nonetheless, it exhibits signs of deterioration and is clearly in need of further repairs and stabilisation.

9. Both dwellings and the stone wall are listed on Table Ga/3 as "Contributory Places".

10. The land slopes gently downward from south to north. There appears to be a level difference of about 0.5 metres.

The Proposed Development

11. As I have said previously the plans originally submitted to the Council were amended prior to its formal consideration of the proposed development. Mr Gladigau described the proposal in the following terms:

"..... the existing dwelling and outbuilding is proposed to be converted to a consulting room for a veterinary surgery. The existing dwelling will be upgraded and restored, and will comprise a reception and retail area at the front, treatment room, consulting rooms, and staff and sanitary facilities at the rear. The rear outbuilding is proposed to be used as a store and office for the vet. The dwelling and outbuilding will be linked by a pergola.

On the vacant section of land it is proposed to develop two single storey shops with a net lettable area of 277 square metres. The shops will be setback 7.8 metres from the Main Street frontage and will be partly built to the northern boundary of the site with a parapet wall. The rest of the building is setback 2.0 metres from the northern boundary, and the area between the building and the boundary is designated as a service yard. The proposed shops are single storey with rendered walls, hipped roof and verandahs, and designed to compliment the nature of the streetscape and buildings in the locality. Materials proposed include boncote parchment on aerated concrete panel walls and galvanised iron corrugated roofing.

Vehicular access to the development is via the existing crossover adjacent to the existing dwelling. The crossover will be extended to allow for a 6.0 metre wide two way access point for the development. 36 carparking spaces are provided including space for two disabled carparks. A service delivery access is provided behind the new shop building.

It is proposed to provide 1800 high colorbond fencing along the remaining side and rear boundaries of the site. The perimeter boundary areas and areas in between carparks are proposed to be landscaped. The front stone wall will be modified to allow for the development, including widening of the vehicular accessway and an opening in the centre to allow for pedestrian access to the shops. New brick piers and curved walling to match the existing will be provided. The rest of the wall will be underpinned, repaired and restored to maintain its contributory nature to the historic conservation policy area. The phone box in front of the site is proposed to be moved to a more appropriate location next to the shops and a new pedestrian refuge is planned in front of the premises."

12. Certain aspects of the proposed development described by Mr Gladigau were clarified by Mr Wohlstadt in his statement and oral evidence to the following effect:

•	The gross leasable floor area is in the order of 291 square metres.
•	34 carparking spaces are provided.
•	The rear carpark will be constructed as near as practicable to natural ground level.

13. It also became clear during the course of the hearing that the grade of the land had not been properly taken into account when defining, on the plans, the height of the proposed Shop 3 in respect of Mr Phipp's land and the drainage of the rear carpark. In reality, the height of the wall on the northern boundary (including the height of the footings), as a consequence of compliance with Condition 4 of the Council's consent, will be in the order of 4.5 metres above natural ground level along that boundary.

14. Furthermore, it is likely that stormwater sump and pump, now shown on Drawing No. 408SK07 at the high point of the rear carpark will, if it is to function as intended, need to be relocated.

15. I acknowledge that it is common practice to prepare development applications with minimal technical information to hand. However, to do so, in some cases distortions can be introduced into the picture thereby masking the reality of the impact of the proposal. In the case before me, the wall along Mr Phipp's boundary - a matter he raises as a concern - is higher than he and, presumably, the Council appreciated. Furthermore, were simple spot levels taken of the subject land and the existing drainage system, a more complete picture of the drainage strategy appropriate for the development would have been able to be assembled (a matter of concern to Mr Wittwer).

16. I do not view these inaccuracies as fatal flaws in the proposal. However, the matter serves to illustrate that architects and planners have, in my view, a professional duty to identify all of the aspects of the subject land that are for consideration when assessing the proposal against the relevant provisions of the Development Plan.

The Locality

17. Mr Wohlstadt and Mr Gladigau defined a locality for the purposes of this appeal. Their localities include properties on both sides of Main Street (also referred to as Main North Road) and the western side of Drury Street and terminate at the alignment of the river south of the subject land. Although Mr Gladigau's locality extends further north to include the commercial properties at the junction of Main Street and Redbanks Road, there is little between the planning experts in this respect.

18. Both planners acknowledge the mixture of commercial/retail and residential uses in the locality and their location on a busy thoroughfare (in excess of 12,000 vehicles per day). Mr Wohlstad described the character of the locality in the following terms:

"The locality has a typical Main Street character, with a combination of dwellings and shops, most with traditional street fronts. There is a mixture of local and neighbourhood level facilities in the locality, categorised as follows:

Local: Neighbourhood:

Post Office Small Machine Sales

Deli Hardware

Canvas Repairs Tile Supplies

Book Shop

Firewood Sales

The local facilities dominate the range of services available, but the position of these uses on an arterial road means that the precinct functions more like a neighbourhood centre than a local centre, serving a residential catchment of 2,000-3,000 people. The number of residential uses and retail business are approximately equal, however much of the architecture is premised on business use and business activities such as retail signage together with traffic dominate the locality's character to produce a Main Street character."

19. Although Mr Gladigau's statement in no way contradicted Mr Wohlstadt's opinions in respect of the locality, he drew the Court's attention to the existence of several other aspects of the locality including the local heritage places and contributory places within it.

"Off-site" Proposals

20. The Court was led to understand that, as a consequence of the proposal, the Council intends to undertake certain on-street measures to improve traffic safety within the immediate vicinity of the subject land. Although the precise design has yet to be agreed, the Council, as I understand it, has committed to removing on-street carparking near the proposed entranceway and facilitate the relocation of the telephone box and the construction of the pedestrian refuge crossing.

21. Mr Leydon submitted that I am entitled to rely on the undertakings of the Council and, therefore, entitled to take these intended changes into consideration.

The Grounds of the Appeal

22. Mr Wittwer is a pensioner and lives directly behind the subject land. His house, which faces Drury Street, is raised 300-400mm above natural ground level. The "living" areas of his house are oriented toward the subject land. The fence on the boundary common with the subject land appears to be 1400-1500mm high. His main concerns are these:

•	the view of the subject land from his dwelling will be impaired by the appearance of the shops;
•	the use of the rear carpark will impair the amenity of and cause the loss of privacy to his land through noise emissions and the overspill of car headlights;
•	the lack of clear responsibility to prevent traffic movement in the rear carpark after hours;
•	the design of the carpark will increase the potential for flooding; and
•	the shops will increase traffic in the area and its movement to and from the subject land will create unsafe traffic conditions along Main Street.

23. Mr Phipps resides in the house adjacent the northern boundary of the subject land. He has lived in his house for 26 years and is also a pensioner. He shares Mr Wittwer's concern about increased traffic and traffic safety and is concerned about further interference to his ability to get vehicles in and out of his property. This problem, he says, will arise from the relocation of the planned pedestrian refuge/crossing, which relocation is a direct consequence of the proposed development.

24. Mr Phipps is also concerned about the visual impact that the proposed wall will have on the amenity of his land.

Evidence, Submissions and Assessment

25. Although the appellants' complaints ultimately derive from the proposed non-residential use of the subject land they are, in the end, confined to matters relating to the external impacts of the proposed development. However, it is well established that this Court considers a development proposal afresh. In doing so, one must consider the broad question of whether the proposed development as a use of land is suitable in the zone along with a consideration of "externalities" and the merits of its design. This is not always an easy task. Appeals before this Court are rarely black and white and a decision can only be formed after a careful consideration of all of the circumstances and relevant provisions of the Development Plan. In this respect, Mr Leydon's submissions in his final address were most relevant.

26. First to the suitability of the proposed use of land within its zone and locality. The subject land is within the Residential 2G Zone as depicted on Map Ga/5 of the Development Plan for the Council. It is also within the Willaston Historic (Conservation) Policy Area, the extent of which Area is depicted on Fig Hc/5 and Map Ga/13. The sole objective of the Residential 2G Zone is expressed in the following terms:

"Objective 1: A zone primarily accommodating detached dwellings, and semi-detached dwellings with row dwellings or residential flat buildings of medium-densities, or the keeping of horses, in suitable areas."

27. Principle 1 of the zone is expressed in almost identical terms. All developments listed as complying in the Residential 2G Zone in Principle 2 are, by virtue of that principle, excluded as complying development from the Willaston Historic (Conservation) Policy Area. Since the use of land for consulting rooms and a group of shops of the floor area proposed are not included in the list of non-complying developments, the proposed use falls for consideration under all relevant provisions of the Development Plan.

28. It is obvious that the provisions for the Residential 2G Zone speak neither for or against the establishment of a land use proposed in this appeal. In these circumstances a proper approach to the assessment of its suitability in the zone requires an understanding of those provisions which have a more local application and those provisions that guide the location of retail or centre-type facilities within which generic category of land uses the proposal falls.

29. The Residential 2G Zone is one of five residential zones identified in the Development Plan for the Council. An inspection of all zone maps in the Development Plan indicates that the Residential 2G Zone covers a significant proportion of the area of the Council designated for residential use. It might be concluded from this observation that the expression of the zone's objective and principles by the use of the term "primarily" (that is, "not exclusively") is a recognition of the different circumstances that are likely to be encountered in a zone of such geographic dimensions. Furthermore, the provisions might also be so expressed in recognition of the various policy areas that overlay it. As I have said the Willaston Historic (Conservation) Policy Area is one such instance.

30. Fig Hc/5 identifies the boundaries of the Willaston Historic (Conservation) Policy Area. Generally it encompasses the properties on both sides of Main North Road (ie. Main Street) from the North Para River to Princess Street. The objectives and principles of development control for this Area identify the historic character as expressed in the "Statement of Historical Significance" as a general basis for guiding future development. The reference to the aforementioned statement is, I think, a reference to the "Statement of Heritage Value" for the Area; which statement is expressed in the following terms:

"Statement of Heritage Value

The area marks the main street of the settlement of Willaston and is of historic significance as it still contains many of the original buildings of the settlement, dating from the period 1848-1900, which contribute to an understanding of the history and development of the town of Willaston.

The township of Willaston was officially laid out on 21 October 1848. In the following year the original Willaston Hotel was licensed, and during the 1850s several shops and houses were constructed. The 1860s witnessed the flourishing of the town, with the establishment of a post office, second hotel, combined school and hall, a Methodist church and the opening of the Willaston cemetery. All these significant reminders to the early development of the town survive, with the commercial and community buildings still forming the core of the town.

Despite its close proximity the larger town of Gawler, Willaston has managed to maintain its own identity. The core of this identity is the commercial centre of the town, containing a combination of commercial, civic and residential development typical of South Australia's smaller rural towns.

Although separate from Gawler, many Willaston services were associated with Gawler. From 1866, Gawler's main cemetery was located in Willaston, and brick and masonry works in Willaston provided Gawler with materials for many buildings. Thus, Willaston has grown partly as a separate rural township and partly as a northern extension of Gawler."

31. The relevant objectives and principles of development control for the Area are as follows:

WILLASTON HISTORIC (CONSERVATION) POLICY AREA

"Objective 1: Development complementary to the historic character and significance of the policy area as expressed in the Statement of Historic Significance and desired character."

"Objective 2: Retention of all places (including landscape elements) which contribute to the historic character of the policy area."

"Objective 3: Conservation and enhancement of the historic character of the policy area, through consideration of:

(a) Streetscape character;

(b) Subdivision pattern and width of streets;

(c) Building set-backs;

(d) Building form and materials;

(e) Site layout, landscaping and fencing."

"Objective 4: Retention of historic streetscape vistas and views."

"Objective 5: Maintenance of the existing topography."

Principles of Development Control

"1 Development should:

(a) complement and reinforce the historic character of existing dwellings;

(b) be sited with little or no set back from the street and minimal set back from neighbouring buildings for non-residential development; and

(c) incorporate verandahs with support posts rather than cantilevered from buildings."

"2 Development generally should be single storey in height."

"3 Development in the residential area along Main North Road should:

(a) complement and reinforce the historic character of the early dwellings, sited on generous allotments;

(b) be set back from the street and neighbouring buildings consistent with the historic set-back on the site."

"4 Existing masonry fences along the main road should be retained."

"5 Development should have fences to define street boundaries that complement the historic fences found in the area."

"6 Front boundary fences with a height greater than 1200 millimetres should not be located along Main North Road allotment boundaries except to complement historic fences of greater height."

32. Having considered that which I observed from the view of the land in the near vicinity of the subject land and having regard to the land use observations made by both planning experts, it is apparent to me that the composition and structure of the Area is generally consistent with that anticipated in the Statement of Heritage Value and the objectives and principles applicable to the Area. There exists in the locality a mixture of residential and commercial retail land uses of a type and scale one would expect to see in a rural township. There is little if any evidence to indicate to me that the future of the Area is, or is about to be, compromised.

33. This Area stands in contrast with the Willaston Residential Historic (Conservation) Policy Area which incorporates properties on both sides of Redbanks Road, north-west of the intersection of Main Street, Princess Street and Holmes Street. The Statement of Heritage Value in this instance places a more specific emphasis on its residential character, which character has been established mainly through the preservation of dwellings dating back to the settlement of Willaston and one which is sought to be enhanced (see Objectives 1 and 3 and Principle 1 for that area).

34. Mr Leydon submitted that I should also take into consideration the particular circumstances within the area of the Council and certain provisions in the Development Plan that have a bearing on the distribution of retail/centre facilities. In summary, Mr Leydon submitted as follows:

•

Unlike most other metropolitan local government areas, the Development Plan for the Council lacks a clear hierarchy and coherent structure for the provision of retail facilities. Although the focus for centre activities is the Town Centre Zone there is little in the planning provisions that assist in guiding the distribution of retail land uses, save for one District Shopping Zone (near the subject land) and one Local Shopping Zone (near the eastern margin of the Council area).

•	Several retail/centre developments have been, and continue to be, developed within the area of the Council (Mr Wohlstadt's statement p.11) without the assistance of a hierarchy or structure. Many of those established are within residential zones.

•	The District Shopping Zone in the vicinity of the subject land is, on the evidence of Mr Wohlstadt, unsuitable as an area for the location of retail development and does not have available within it land suitable for the purpose intended in this proposal.

•

In light of the provisions for the residential zones generally within the Council area, it is reasonable to infer that, with respect to the Residential 2G Zone, the "brakes" placed on retail land uses are not so heavily applied. He pointed out that within the Residential 1 and Residential 1A Zones consulting rooms and shops of all forms are listed as non-complying developments and in the Residential 2 Zone, shops having a floor area greater than 250 square metres are non-complying. This may be contrasted with the Residential 2G Zone where shops having a floor area greater than 450 square metres are listed as non-complying.

•	Finally Mr Leydon said that a proper reading of the Metropolitan and Council Wide provisions of the Development Plan, on balance, supports the location of the proposed development on the subject land. He drew my attention to the following key provisions:

METROPOLITAN ADELAIDE

Principle of Development Control

"15 Shopping development should be located as follows:

(a) A shop, or group of shops, with a gross leasable area of greater than 250 square metres should be located in a business, centre, or shopping zone, or area.

(b) A shop, or group of shops, with a gross leasable area of 250 square metres or less should not be located on an arterial road (as shown on Map Ga/1 (Overlay 1)) unless located in a business, centre, or shopping zone, or area.

(c) A shop, or group of shops, with a gross leasable area of 250 square metres or less located outside a business, centre, or shopping zone, or area, should:

(i) not hinder the development or function of any business, centre, or shopping zone, or area; and

(ii) conform to the design, access, and car parking requirements for business, centre, and shopping zones or areas, set out in principles of development control numbered 18, 19 and 20 below."

COUNCIL WIDE

Principles of Development Control

"19 Existing and proposed living areas should contain only residential development and associated development such as local shops, primary schools and local open spaces."

"26 Shopping development should be located as follows:

(a) A shop or group of shops with a gross leasable area of greater than 250 square metres should be located in a business centre or shopping zone.

....."

"28 Centre-type development located outside business, centre and shopping zones should:

(a) be of a size and type which would not hinder the development or function of any business, centre or shopping zone, in accordance with the objectives for centres and shops and the objectives for the appropriate zones; and

....."

The effect of Mr Leydon's submissions in this respect is that Principle 19 lends direct support to the proposal. Any conflict that may be evident when the development is assessed against Principle 26(a) should be set against the fact that the Development Plan lacks a coherent and logical structure for the delivery of retail/centre activities to the community and should, in any event, be assessed against Mr Wohlstadt's evidence that the type and nature of the proposed development poses no threat to the development or function of an existing shopping centre or zone.

35. As to the question of the design of the development and its impact within the locality, Mr Wohlstadt undertook an analysis of the development against the design principles that might properly be applied in these circumstances. Council Wide Principles 28(b) and 29 are relevant in this respect and are expressed as follows:

"28 Centre-type development located outside business, centre and shopping zones should:

.....

(b) conform to the access, car parking and design principles for business, centre and shopping zones set out below."

"29 Development within business, centre and shopping zones should be located having regard to the following principles:

(a) Within zones which straddle arterial roads or intersections of arterial roads, the major shopping focus, defined by the gross leasable area and associated car parking, should be restricted to one side of the road or one quadrant of the intersection.

(b) Development should not generate pedestrian or vehicular traffic onto or across an arterial road in such a way as to impair the movement of traffic on that road materially or to cause safety hazards.

(c) Development should not generate significant increases in traffic in adjacent residential areas.

(d) Where traffic control works, public works or facilities are required as a direct result of a development, the cost of such works or facilities should be borne by the developer.

(e) Development, including required car parking and landscaping, should be accommodated on land which is not required for road widening."

36. Mr Wohlstadt concluded that the development was in sufficient compliance with these design guidelines. Nonetheless, he advocated for the provision of a walkway adjacent Shop 2, the purpose of which is to separate pedestrians from vehicle movements. I gleaned from his evidence that he was particularly satisfied with the role that the development will play in the upgrade of the amenity generally and the provision of additional carparking (above and beyond that which is required for a development of the size proposed) as a means of reducing on-street parking demands and assisting future "Main Street" improvements (statement p.15).

37. As an experienced planner, Mr Wohlstadt had given consideration to most of the concerns of the appellants but ultimately concluded that the amenity impacts were of little consequence in the circumstances provided certain measures were taken to manage traffic movement after hours, increase the height of the fence on the common boundary with Mr Wittwer's land and take measures to ensure that the community was buffered from noise from animals being kept overnight in the veterinary consulting rooms.

38. Mr Wohlstadt further opined that the wall to be located on the common boundary with Mr Phipps' land was, after considering a number of factors, satisfactory. He said that walls on side boundaries were characteristic of development in the locality and, in any event, its impact on Mr Phipps' land was acceptable in light of the position and orientation of his home, the existence of the large pepper tree and the fact that it is to be positioned in a generally inactive part of Mr Phipps' land.

39. Mr Gladigau took a similar view of the design of the proposed development. The following extracts from his statement summarise his views:.

"The proposed development has been designed to be complimentary to the historic character and significance of the policy area. The places recognised as contributing to the historic character, including the dwelling, outbuilding and stone wall will be retained, although the stone wall is proposed to be modified. I am satisfied that the proposed alterations to the stone wall have been designed to retain the wall's historic integrity."

"The proposed development has been designed to compliment the streetscape character of the area. The subdivision pattern is unchanged and the building setbacks have been designed to blend in with development on either side of the subject land. The building form and materials proposed, the site layout, landscaping and fencing have all been considered in the design of the development to conserve and enhance the historic character of the area."

"The majority of the existing stone/masonry fence on the main road will be retained and modifications will be carried out in a sympathetic manner to compliment the historic fences found in the area."

"The privacy of adjacent residential premises should not be unduly offended by the proposed development given the proposed boundary fencing, landscaping, and the decision to design the carpark at grade. Given the busy nature of the adjoining road network, I am of the opinion that noise disturbance from the carpark during normal business hours will not be a major issue. However, I agree that the use of the rear section of the carpark for after hours use may cause noise impacts. To address this issue, the applicant has agreed to secure this portion of the carpark after hours. This would still allow the central portion of the carpark to be used which is a particular requirement of the consulting rooms.

It is noted that the Council condition refers to securing the carpark when the use is not required. I consider that a further condition should be imposed to secure the rear carpark after hours. The applicant has agreed to a 7.00 pm to 8.00 am closure."

40. Both expert planners reached the conclusion that the proposed development is not of a size or purpose that is likely to hinder the function or importance of an existing shopping centre.

41. Mr Wohlstadt indicated that the breaking of the continuity of the front stone wall was unfortunate but ultimately accepted, as Mr Gladigau did, the benefits of its restoration.

42. Mr Willbery is a qualified and experienced traffic engineer. He opined that the traffic likely to be generated by the proposed development did not present any particular concerns with respect to traffic safety. In reaching this conclusion he opined that:

•	the traffic generation forecast is likely to be at the lower end of the volume range (50 to 100 vehicles per day per 100 square metres of floor area) that he considered applicable; and
•	as a consequence, the vehicles so generated were within the traffic capacity of the road system.

43. However, Mr Willbery's opinion in part relies on an expectation that the sight distances for cars exiting the subject land are to be improved with the removal of on-street parking in the near vicinity of the entranceway, the suitable relocation of the telephone box and that there is to be put in place a pedestrian refuge island. I gleaned from his evidence that, although these measures are intended, it will be important to establish a correct infrastructure redesign package which might involve, in his words, "a bit of weighing up".

44. Having carefully considered all that has been put before me and from that which I observed from the view, I have reached the following conclusions:

•

The proposal is not a major retail or centre activity. By any measure it is small in scale and likely to be used for retail and like activities which have a local service function. I accept the evidence of both expert planners who opined that the development is of a type and scale which would not hinder the development of any existing centre.

•

That the proposed development is not in a designated shopping zone or centre is obvious. However, one should not be surprised that this is the case since the Development Plan for the Council is devoid of a coherent structure for centres and retail development generally and more particularly for shops of the scale proposed. In essence, there are few, if any, specific zones that are available to which the provisions of Metropolitan Adelaide Principle 15(a) and Council Wide Principle 26(a) apply. Furthermore, Council Wide Principle 24 directs attention to the desired location of local shops in the following terms:

"24 Small, local groups of shops catering for the everyday needs of local residents should be developed in the approximate locations shown on Map Ga/1 (Overlay 1)."

When one examines Map Ga/1 (Overlay 1) there is not one local centre identified to which Principle 24 might apply.

•	Although the presence of the District Shopping Zone is a factor for consideration, there was nothing put to me to suggest that it has or is capable of performing the role assigned to it. The sole objective for the zone is expressed in the following terms:

"Objective 1: A zone primarily accommodating a range of shops servicing the needs of a wider area than that of a local shopping zone."

The text following this objective, among other things, says this:

"The zone should develop as an area of medium scale and intensity retail and office activities to support activities which could not be accommodated in the Town Centre Zones such as offices, showrooms, saleyards, hotels, motels, petrol filling stations, and stock feed sales."

From the objective and this text it is clear that the intention of the zone is to provide a zone for the provision of centre type activities of a relatively high order. However, the reality of its development indicates to me that there is little chance of its role ever being realised. Breaches of its boundaries with the location of the hotel and the hardware and tile outlets in the Residential 2G Zone (within or near the locality) is evidence that the zone's future purpose has been seriously compromised.

Having regard to the foregoing it is obvious to me that the planning for retail or centre type facilities of the order proposed in the subject application is to be done in what some planners refer to as a "policy vacuum". Although it would be wrong to say that the failure of a planning authority to properly plan for retail facilities automatically justifies their development in a "willy-nilly" fashion, in the circumstances before me there exists a policy aspect of the zone which supports the development of retail facilities on the subject land.

Therefore I have concluded that a proper reading of the Development Plan, having regard in particular to the Willaston Historic (Conservation) Policy Area, would support the view that the subject land is within a part of the Residential 2G Zone intended to cater for a mixture of land uses typical of those in "Main Streets" in former rural settings. Furthermore, not only is a development of the scale proposed consistent with any reasonable interpretation of the relevant provisions of the Willaston Historic (Conservation) Policy Area, it is also consistent with the established character of development in its locality.

•

I accept the evidence of Mr Willbery in respect of traffic safety and agree with him that the remedial on-street works suggested by the Council must be part and parcel of the development. I acknowledge the fears expressed by the appellants. However, there is little or no evidence upon which I can rely to support a concern that the locality is, at present, the subject of unacceptable or unsafe traffic conditions. Nor is there evidence to support a concern that the proposed use will, in itself, impose on the community unsafe traffic conditions. In reaching this conclusion I accept Mr Leydon's submission that I am entitled to take into account a commitment by the Council to implement the improvement to sight distances and the installation of pedestrian facilities.

•

I accept that the amenity now available to Mr Wittwer's and Mr Phipps' properties will change as a consequence of the proposed development. However, the impacts, in my view, are manageable and, in the case of Mr Wittwer's concern about noise from vehicles, they are not of an order which will bring the proposal into conflict with the relevant provisions of the Development Plan.

In Mr Phipps' circumstances I consider the presence of a wall of uncertain height (in excess of 4 metres) and of the length proposed to be less than desirable. However, I am of the view that the wall could be easily relocated from the boundary by one metre or so, and a suitable fence being constructed in its place. I accept Mr Whimpress' submissions that such a solution would be acceptable and not of a kind that seriously impacts on the overall design and performance of the scheme. An amendment of this nature would also remove from the plan a "dead area" adjacent Mr Phipps' boundary and might also encourage the relocation of the storage area away from his boundary.

•	No evidence was put to me that suggests the development will be the cause of or exacerbate stormwater flow or flooding. However, I accept that the proposal plan is deficient in its specific intentions about the capture of stormwater and the method by which it is ultimately disposed.

•	I do not consider the provision of a walkway adjacent Shop 2 to be a critical design element. The development, in my view, will not generate the level of activity that would pose safety problems to pedestrians alighting from or returning to vehicles.

45. In my memorandum dated 8 August 2002, I advised the parties of the foregoing conclusions and that the decision of the Council to grant consent was a correct one, albeit with conditions attached that, in my view, require further consideration. I further advised that when all of the relevant circumstances are considered and the provisions of the Plan properly applied it is evident that the subject land is suitable for its intended purpose. Notwithstanding the manner in which the sole objective for the Residential 2G Zone is expressed, other provisions of the Plan, the absence of provisions which would normally act to distribute retail/centre facilities in an orderly fashion in the Council area, the existing mixed use character of the zone and the modest scale of the proposal all act to support its presence on the subject land. My memorandum also listed a number of amendments and additional conditions I considered appropriate.

46. When the matter resumed on 5 November 2002, Mr Whimpress tendered a set of amended plans (Exhibit E). The changes incorporated in Exhibit E respond to my memorandum in an appropriate way. Mr Leydon handed to the Court a list of amended conditions considered by the Council to be appropriate. I accept those conditions.

47. I acknowledge and agree with Mr Leydon's submissions in respect of the roadworks that are, in my view, necessary for safe traffic movements. The Council, in evidence, indicated plans are afoot to address the issues and that liaison has been established with the relevant agencies to give effect to the necessary changes once the detailed study has been completed.

48. The appeal is dismissed. The Court orders that provisional development plan consent be granted for the use of an existing dwelling and outbuilding as consulting rooms with an associated office/storage building, a new building comprising two shops, associated driveway and vehicle parking areas and partial removal of a stone wall at 7-9 Main Street, Willaston (Development Application No. 490/349/2001) subject to the following conditions:

1.	The development is undertaken in accordance with Development Application No. 490/349/2001, the plans and details as amended by the plans marked Exhibit E and the conditions which follow.

2. The subject land and buildings upon it shall be maintained to the reasonable satisfaction of Council at all times.

3.	That the Finished Floor Level of the new building is 500mm above the projected flood risk in this location.

4.	All stormwater run-off from buildings shall be engineered to the satisfaction of the Council and be disposed of to Council's stormwater drainage system via a sump/pump to Main Street.

5.	The proposed driveway shall be sufficiently "flared" so as to enable vehicles to access and depart the site safely.

6.	In the event that pedestrian and vehicular gates are to be installed adjacent Main Street, such gates are to be chosen in consultation with Council's Heritage Adviser.

7.

The perimeter carpark fencing is to be designed in a manner that will preserve the privacy of adjoining residents and shall be of a height of 1800mm in relation to the eastern and southern boundaries and 2000mm for the north-eastern boundary, and be chosen in consultation with Council's Heritage Adviser and adjoining property owners.

NB: The height of the fence to be measured from the finished construction level of the carpark.

8.	Landscaping of a species determined following further consultation with Council staff, shall be established, nurtured and maintained to the reasonable satisfaction of the Council.

9. A site plan and other appropriate technical details shall be submitted for the approval of the Council prior to commencement of construction and sealing of the driveway and carparking areas. The site plan shall indicate that:

(a)	All driveway, access and carparking areas will be constructed, paved or sealed in a manner and with materials satisfactory to Council.

(b)	All stormwater run-off from the buildings and paved or sealed areas will be disposed of to Council's stormwater drainage system in a manner and with materials satisfactory to Council.

10.	Entranceways shall be signed, paved and sealed, at the Developer's expense, to the satisfaction of the Council.

11.	Kerbing of at least 150m in height shall be constructed around the perimeter of all landscaped areas prior to use of the development herein approved. The kerbing may be constructed of concrete, railway sleepers or other similar materials.

12.	A pre-cast concrete kerb section or other suitable material shall be installed in each parking bay to the satisfaction of the Council prior to use of the development herein approved.

13.	All carparking spaces shall be clearly delineated at all times by the use of signage and white/yellow paint. Such works shall be completed to the satisfaction of the Council prior to the occupation of the development herein approved.

14.	Overhead lighting shall be provided to the major entranceway(s), to Australian Standards specifications, prior to use of the development herein approved. Such lighting shall be directed and shielded in a manner so as to cause no light spill nuisance to occupiers of adjacent premises.

15.	Air-conditioning units be positioned so as not being visible from public areas and be designed to operate so as not to cause inconvenience to adjoining property owners.

16.	The off-street carpark be managed so that it is closed and secured when the uses now approved are not opened for business.

17.	Animals kept on the premises for observation or treatment as part of the operation of the veterinary consulting rooms being confined within buildings and in rooms designed to prevent noise from barking dogs to cause nuisance or annoyance to persons living or working in the locality.

18.

Alterations to the front wall, inclusive of installation of pedestrian access gates, renovation of the wall and alteration to vehicular entry being undertaken in consultation with Council's Heritage Adviser and in respect of the vehicular entry opening, based on the advice of a qualified traffic engineer.

49. There will be an order accordingly.