Bibbo v City of Norwood Payneham & St Peters and Ors No ERD-02-502 [2003] SAERDC 1 (3 January 2003)

Last Updated: 5 January 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

16/09/2002 to 17/09/2002, 03/12/2002.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - application for two, two-storey group dwellings - Historic (Conservation) Zone - Residential - refused by the Council - planning merits - issues of characteristics of immediate and broader locality with historic conservation attributes considered - compatibility of design features of the proposal including height, setbacks, roof form, materials considered - impacts of boundary walls and side setbacks on adjoining amenity, overshadowing considered - impacts of upper level windows and balconies and remediation treatments to minimise privacy loss considered - prior development approved by this Court considered - functional aspects relating to stormwater drainage, vehicle parking and landscaping considered - proposal exhibited some variances with Development Plan - further amendments submitted - amended proposal sufficiently in accord with Development Plan to warrant consent - appeal upheld and decision of the Council reversed - conditional provisional development plan consent granted.

• Development Act 1993 ;
• Development Regulations 1993 , referred to.
• Return Style Pty Ltd v City of Norwood Payneham & St Peters and Anor [2000] SAERDC 20;
• CSER v City of Norwood Payneham & St Peters [1999] SAERDC 14, considered.

Representation

Appellant: SALVATORE BIBBO
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF NORWOOD PAYNEHAM & ST PETERS
Counsel: MR P LEADBETER - Solicitors: NORMAN WATERHOUSE

Respondent: TERRY & SHIRLEY ROWE
In Person

ERD-02-502

Judgment No. [2003] SAERDC 1

3 January 2003

SALVATORE BIBBO

v

CITY OF NORWOOD, PAYNEHAM & ST PETERS

and

TERRY AND SHIRLEY ROWE

(ERDC No. 502 of 2002)

[2003] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an applicant appeal against the Council's refusal to Development Application No.155/1108/01 for the development of two, two-storey group dwellings and removal of a "significant tree" (within the meaning of the Development Act 1993) at 9 Marchant Street, Kensington.

2. In June 2002, the Council gave as its reasons for refusal the following:

"1. Metropolitan Wide Principles of Development Control numbers 9 and 10, Council Wide Objective 2 and Principles of Development Control numbers 27 and 30 and Zone Principle of Development Control 3."

3. A summary of some of the relevant details is:

Date of application : 20 December 2001

Subject land address: 9 Marchant Street, Kensington

Existing Use Vacant land

Proposal (as amended): Two, two-storey group dwellings with associated garaging, landscaping and swimming pool/spa and removal of "significant tree"

Relevant authority: City of Norwood Payneham & St Peters

Appropriate

Development Plan: Kensington and Norwood (City) consolidated version 27 September 2001

Relevant Zone/Area: Historic (Conservation) Zone - Residential; and Kensington 1 Policy Area, Maps KeN/4 and 6

Date of decision: 17 June 2002

Appeal lodged: 1 July 2002

4. The matter was not resolved at a pre-trial conference on 24 July 2002 and following a directions hearing on 27 August 2002, the matter proceeded to hearing.

5. Sworn evidence was given by three experts, Ms S Manley, a consultant town planner with some five year's experience, by Ms E Vines, ARAIA, an architect with significant experience and specialisation in conservation matters and by Mr P Brunning, MPIA, a consultant town planner with some 15 year's experience. Evidence was also given by Mr Rowe, one of the co-respondents.

6. The Court viewed the subject land and the surrounding locality on 16 September 2002, in the presence of the parties. It also received copy documents, amended proposal plans at the initial and subsequent appeal hearing, experts' statements including photographs of the site and surrounding development, plans of a prior approval on the site and photographs of overland stormwater flows in Marchant Street.

7. On 3 December 2002, the Court received further amended plans and letter of explanation (Exhibits A5 and A6), and the minutes of the Council's Development Assessment Panel on 11 November 2002 (Exhibit R4) wherein it resolved to conditionally support the amended proposal. The co-respondents maintained their opposition to the development.

The Subject Land

8. The subject land is Allotment 101 DP 56169, contained within Certificate of Title Volume 5842 Folio 608 and known as 9 Marchant Street, Kensington.

9. The subject land is irregular in shape and is vacant, except for a single "significant tree" (English elm) located on the southern boundary near to the Marchant Street entrance and another minor tree of no significance. The site has an area of some 684 square metres with a frontage of only 4.64 metres to the end of Marchant Street. The site is relatively flat but with a gentle slope from east to west and generally toward Marchant Street and it sits a little lower, perhaps 600-800 mm than adjoining land to the east and the south.

10. The subject land allotment was previously the balance of the land associated with 25 Thornton Street, Kensington and was created by a plan of land division following a prior approval by this Court for three dwellings on the subject land - refer to Return Style Pty Ltd v City of Norwood Payneham & St Peters and Anor (ERD-99-1369, [2000] SAERDC 20 (delivered 25 February 2000)) - and to Prior Appeal below, for further details.

The Proposal

11. The proposal plans initially considered by the Court prepared by architect Salvatore Bibbo and by James Hayter and Associates were contained in the Exhibits A1 and A3, together with an amendment submitted at the initial hearing marked Exhibit A2 which modified the upper level floor area and boundary setbacks to dwelling marked as Residence 1. All of the evidence was based on these plans.

12. That proposal provided for two, two-storey group dwellings both containing attached double garages, a swimming pool and associated spa with open space areas to be accessed and utilised by the occupants of both dwellings, paving and landscaping (all low level species), and the removal of the "significant tree" - an "English elm". Access is provided to the development from the end of Marchant Street in an angled fashion toward the north-east given the peculiar arrangement of the boundary with the adjoining site at 7 Marchant Street. A minor fence encroachment on the south-eastern corner of that property is to be rectified to facilitate vehicle movement.

13. Upon completion of the substantive hearing on 17 September 2002, in the light of the evidence, the prior appeal decision, and my views, I intimated to the parties that I would support two, two-storey dwellings in-principle on the land and I afforded the appellant the opportunity to make and detail further amendments to the proposal having regard to the evidence and a range of issues raised and suggestions made. Those amendments relate to detailed design, height and bulk, setbacks, appearance, style, landscaping, rainwater tank inclusions and several other aspects but they do not change the essential nature of the proposal, namely for two, two-storey group dwellings in generally the positions as originally envisaged, together with associated swimming pool/spa, garaging, paving and landscaping areas, and removal of the "significant tree".

14. Further amended plans marked Exhibit A6 were tendered when the hearing resumed on 3 December 2002, and then subsequently corrected in respect of site dimensions and boundary detail adjoining the road frontage, with the consent of the parties. A letter from Ms Manley to Council (Exhibit A5) outlined the amendments. The proposal amended by Exhibit A6 is outlined below.

15. Dwelling No.1, the more southerly dwelling, has a living area of some 158 square metres, a garage of 39 square metres and verandah of 7 square metres giving a total of some 205 square metres. It is setback some 7.4 metres (to the verandah) and 8.5 metres to the face of the dwelling from the end of Marchant Street and a small triangular fenced, landscaped area is provided in front. It has further exclusive private open space of some 40 square metres at the rear, including a pergola and lawned area adjacent the shared swimming pool located to the east. The proposed dwelling has wall heights approximately 5.9 metres, a maximum height to ridgeline of 7.8 metres and floor to ceiling heights on both levels of some 2.7 metres. It is to be positioned along some 11.5 metres (including verandah), of the southern boundary and some 6.9 metres of the eastern boundary. Its walls are to be sandstone render mixed to a mid-dark shade with galvanised custom orb roofing having a 30 degree roof pitch and with timber framed windows and doors and garage door with glass infill.

16. As amended, Dwelling No.2 is located in the north-eastern corner of the subject site and it has a living area of 245 square metres, a garage area of 40 square metres, porch of some 5 square metres, a verandah of 14 square metres and balcony of 13 square metres comprising a total of some 317 square metres. It is provided with private open space of some 60 square metres, including a courtyard and space adjacent the shared swimming pool. Its garaging is to be located on the western boundary and the ground level laundry is to be located on the northern boundary with the majority of the dwelling at ground and upper level to the northern and eastern boundaries being setback some 2.8 and 1.5 metres respectively. This building is to have wall heights of 5.9 metres, a maximum height to the top of the roof of 7.9 metres and floor to ceiling heights at both levels of 2.7 metres. Its roofing, garage doors, window colours and materials are amended to be the same as proposed for Dwelling No.1.

17. Collectively and by my calculations, the amended dwellings have site coverages in the order of 41.5 per cent, with a floor area ratio of some 0.67:1 and an open space ratio of some 0.8:1.

18. Extensive paved areas are provided for the manoeuvring of motor vehicles associated with the double garaging and including a reversing bay in front of Dwelling No.2 and with a visitor car space position standing in front of the garaging for Dwelling No.2. New boundary fencing is proposed to much of the northern and all of the eastern boundaries specified as 2 metre high rendered masonry wall with 2.6 metre high lattice atop and this fencing would be additional and parallel to existing "Colorbond" and lattice fence, generally sitting on retaining walls in the order of 600-800 mm along part of the eastern boundary. In the northwest corner and western boundary, existing "Colorbond" fencing is to remain.

19. Rainwater tanks (one per dwelling) are now included as part of the proposal, but not indicated on the Site Plan. Stormwater collection details over paved areas and carried by spoon drain to the street water table are also generally shown.

20. A shadow diagram (Exhibit A7) was also submitted indicating the extent of overshadowing from proposed Dwelling No.1 on the rear unit to the south, at 27 Thornton Street.

The Locality

21. The locality is considered to be that part of the surrounding area of direct influence on the subject site and that the proposed development is likely to impact on, to a significant degree. In this case, the Development Plan makes references to not only "the locality", in relation to amenity and character provisions, but in addition refers to the "immediate locality" (Kensington 1 Policy Area, paragraph 1) with respect to assessing design and appearance in the light of the conservation type zoning and other more general provisions, such as Principles 45, 46 and 56.

22. Both planners agreed that the locality in this matter is to be primarily based on visual consideration and perceptions of character. I have given consideration to the locality boundaries as defined by both planners, noting in oral evidence that whilst Ms Manley shows (Exhibit A4) a significantly broader locality, including generally the whole street block bounded by Phillips Street, Regent Street, Thornton Street and High Street. In oral evidence she agreed that the immediate locality for the purposes of the Development Plan was similar to that shown by Mr Brunning as the locality (Exhibit R2). However, Mr Brunning in oral evidence indicated that in his view the immediate locality was even more localised than shown on his locality plan, to include essentially just the adjoining properties to the subject land. I find this interpretation to be too narrow, given the use of the word "locality", and that the authors of the Development Plan would have referred to adjoining or adjacent development if that had been the intention. In some other places they do so.

23. Accordingly, I find that the locality in its broader sense is generally as described by Ms Manley, comprising the street block listed above, but excluding properties on the northern side of Regent Street, (such as a two-storey hotel and two-storey retail/commercial building on the corner of Regent Street with The Parade), given their negligible, if any, relationship to the subject land, but extending westward to include the frontages of sites opposite Marchant Street. I also find that the immediate locality for consideration in this matter to be the locality boundary set out by Mr Brunning in his Statement which generally includes much of some six properties fronting Thornton Street, numbers 19A to 27A, as well as numbers 1 to 10 Marchant Street, numbers 12 and 14 Phillip Street on the corner of Marchant Street, and the rear yards of numbers 16 and 18 Regent Street.

24. Land use within the locality is almost wholly residential, except for part of the frontages of a few commercial/industrial sites on the western side of Phillip Street. As described by Mr Brunning, "the locality is characterised by a range of dwelling styles, designs and arrangements in terms of allotment size and configuration. The locality has an 'historic' character, derived primarily from the Victorian style buildings, including cottages and villas. The pattern of development within the locality also contributes to the historic character, with dwellings generally having frontages to and addressing public streets, with attractive front facades and garden areas".

25. Both planners noted there to be a number of more recent developments, including single storey residential flat buildings to the north-east and south-east of the subject land and elsewhere on Thornton Street in particular, and with one such modern single storey dwelling located at the rear of 18 Regent Street. It was agreed that the dwelling stock is almost entirely single storey. Parts of the locality display an historic character, in particular Marchant Street, with single storey dwellings with pitched roofs, consistent front, side and rear setback and general characteristics. A few properties on Regent Street and Thornton Street, within the locality, also have such characteristics but they present their rear elevations and rear yards to the subject land and hence do not display typical historic character to those directions. Generally to the east (with two exceptions), the style of the residential flat buildings and a few dwellings are modern, with brick and tiled roofing, together with a few of "bungalow" style.

26. The subject site is essentially surrounded by the sides or rear elevations of dwellings and outbuildings, and hence from the public realm its frontage and view to Marchant Street are the more important with regard to heritage considerations. Having said that, the other directions are more important in terms of direct amenity impacts (visual, overlooking, overshadowing, noise etc.).

27. It is noteworthy that the subject site is the balance, surplus land area that was subdivided from a property known as 25 Thornton Street that contains a well maintained and presented Victorian symmetrical cottage with somewhat modernised but compatible rear extensions. This building is listed as both a Local Heritage Place and a contributory item in the relevant Table and Figure within the Development Plan.

28. As described by Ms Manley, "Marchant Street is a unique street within this historical and well established suburb and within Historic (Conservation) Zone. The factors that contribute to it being 'unique' are the narrow street, narrow footpath and the nine similar cottages fronting the street which are relatively well preserved". The narrowness of Marchant Street has meant that on-street parking is limited to the northern side only, with parking restrictions in place on the southern side and with limitations in terms of vehicle manoeuvring within that street, given rear access via laneways to several of those properties and the lack of any driveways to assist in facilitating three-point turns. It is understood that garbage collection vehicles reverse into this street due to such limitations.

29. The nine dwellings in Marchant Street are identified as sites which contribute to the desired character of the area and Zone as per Figure HC(R)/1 and all bar one (7 Marchant Street adjoining the subject land) are listed in Table KeN/1, as Local Heritage Places. The latter seems to be somewhat of an anomaly. Similarly, dwellings at numbers 19A and 25 Thornton Street are contributory items and Local Heritage Places, and non-contributory items include the residential flat buildings at 27 and 27A, a single dwelling at 25A but again, somewhat anomalously, not the similar residential flat building at 21 Thornton Street.

30. On the evidence, the site area of the allotments in the historic Marchant Street range from 190 square metres for No.1, through to 374 square metres for Nos.4 and 6 - all less than the current general dwelling density guide in Zone Principle 11 (refer below).

31. The amenity level of the locality is assessed to be moderate having regard to visual attributes of buildings and gardens and street trees, though it is marred to some extent by the appearance of outbuildings, fencing, overhead electricity wires and the presence of on-street parking, on the evidence, at most times.

Relevant Development Plan Provisions

32. Ms Manley and Mr Brunning provided their opinions as to the relevant provisions in the Development Plan, Kensington and Norwood (City), consolidated version 27 September 2001, and I find the following to be the relevant provisions:

METROPOLITAN ADELAIDE

Objectives: 1, 6, 7, 8, 9 and 39; and

Principles of development control: 3, 4, 8, 9, 10, 11, 13, 14, 15 and 16.

COUNCIL WIDE

Objectives: 1, 2, 3, 10, 17, 18 and 21; and

Principles of development control: 1, 2, 3, 4, 6, 13, 15, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 39, 45, 46, 56, 58, 60, 69, 70 and 71.

HISTORIC (CONSERVATION) ZONE - RESIDENTIAL

Objectives: 1 and 2; and

Kensington 1 Policy Area - character statement; and

Principles of development control: 1, 2, 3, 5, 6, 8, 10 and 11.

Fig HC(R)/1

TABLE KeN/1 - list of local heritage places.

MAPS KeN/1 (Overlay 1) MAP KeN/4 and MAP KeN/6.

33. A number of the most relevant provisions are quoted in full under the heading Planning Assessment for this matter.

Processing

34. The proposal was assessed by the Council to be a Category 3 development under the Development Act 1993 and Development Regulations 1993 and formal public notification pursuant to those requirements was undertaken. It is understood that eight representations were received including seven opposing the development (including the joined respondents residing at 3 Marchant Street) and one person in favour (at 1 Marchant Street).

35. No referrals to government agencies were required in this instance.

The Evidence

36. Ms Manley concluded that the proposal sufficiently meets the Development Plan as a whole, is not seriously at variance with it and is worthy of conditional provisional development plan consent. She suggested additional matters be addressed by condition, including permeable paving and amendments to windows in Dwelling No.2 to minimise overlooking impacts. She found that the form of development was reasonably compatible with the established heritage character of the locality, thereby complying with the primary objectives of the Zone. She was also of the view that the form, bulk and scale of the development was suitable for the locality and that no unreasonable impacts on adjoining neighbours in terms of overlooking and overshadowing would result. She was also of the view that the proposal is generally compatible/consistent with the existing character and amenity of the streetscape. She relied to a moderate extent on the written advice of Mr Butcher, an architect with heritage conservation experience, who advised the Council on the application, with regard to heritage aspects. She also had some regard to the prior decision of this Court concerning the subject site.

37. Ms Vines, the only architect (with conservation experience) who gave evidence to the Court, had a markedly different opinion than that expressed by Mr Butcher in his letter to the Council (Exhibit R1, pages 4 and 5), particularly with regard to the bulk, scale and setbacks of each dwelling, their design, detailing and style and impact on heritage character, particularly in Marchant Street and concerning inadequate landscaping, and particularly the absence of taller trees. She greatly assisted the Court (and indirectly the appellant) in her illustration, Attachment 2 to her Statement of evidence, Exhibit R3, concerning modifications to Dwelling No.1 that would achieve, in her view, sufficient compatibility with the established heritage character of the immediate locality, but she was of the view that such similar modification, together with more substantive amendments (such as changes to building height, bulk and mass and side boundary setbacks) were also required for Dwelling No.2. Such amendments were made by the appellant following discussion with her and Council staff and these are reflected in Exhibit A6, subsequently tendered.

38. In contrast to Ms Manley, Mr Brunning was of the opinion (like Ms Vines), that the bulk, scale, setbacks and design detailing of both dwellings, though more so Dwelling No.2, were not appropriate to the immediate locality and the heritage considerations and accordingly that it did not sufficiently meet the relevant provisions of the Development Plan. It also became apparent that he was the officer of the Council recommending approval and support to the prior proposal on the land, the subject of the prior appeal.

39. It was also noted that the Council's planning staff recommended approval to the application (Exhibit R1, pages 6-28 and 56-59).

40. In a general sense, I find that the overall opinions of Ms Vines and Mr Brunning are the more appropriate, and on this basis, with a conciliatory approach adopted by counsel for the appellant and at the end of the initial hearing, I provided the opportunity for the appellant to potentially make a range of further amendments to the proposal, so that it more closely aligned with such opinions and therefore with various specific Development Plan provisions. Such amendments are now found in Exhibit A6.

41. I agree with submissions by counsel for the respondent Council, that Ms Manley's approach was in error to the extent of reliance on similarities of the proposal with two-storey Victorian era mansions, though none existed in the locality, with less emphasis on the qualities of the historic built form in the locality, and that it was not sufficiently balanced, over-emphasising streetscape impacts over visual amenity and character change impacts to the rear of several properties adjoining the subject land.

42. Mr Rowe gave evidence to the Court primarily related to stormwater drainage aspects, practical issues relating to parking and manoeuvring in Marchant Street, site areas of properties within Marchant Street and approximate floor areas of some dwellings within that street, together with providing some comparison between the previously approved proposal plans (Exhibit AA) for the subject site and those before the Court (Exhibits A1, A2 and A3).

43. On resuming, Mr Rowe made further submissions concerning impact of the garage wall of Dwelling No.2 on the window of the dwelling to the west (7 Marchant Street); reservations about stormwater disposal to the street; positioning of a water meter and proposed fencing in the south-eastern corner of the adjoining property at 7 Marchant Street; clarifying gable ends to Dwelling No.1 (but noting that Dwelling No.2 has a hipped roof); clarifying lattice-louvre details on the upper level, west elevation of Dwelling No.2; and seeking a condition requiring temporary boundary fencing where work on boundaries is to occur.

Prior Appeal

44. This Court, in Return Style Pty Ltd v City of Norwood Payneham & St Peters and Anor [2000] SAERDC 20, granted conditional provisional development plan consent to three, two-storey group dwellings on essentially the same parcel of land, but at that stage it was the rear part of the allotment known as No.25 Thornton Street, a Local Heritage Place. A land division has since implemented the separating boundary between that dwelling and the rear, now vacant land. It was submitted that this decision had relevance to this matter.

45. I find that the proposal the subject of this appeal is of a significantly different design to that under consideration in the prior matter, though there are some basic similarities. Differences include:

•	three dwellings with smaller ground floor footprint, compared to two dwellings with somewhat larger ground floor footprint;
•	extent of single or two-storey walls to boundaries, particularly to the north-west, north and north-east regarding what was labelled Dwelling No.3 (compared to the one now labelled Dwelling No.2);
•	the absence of a central dwelling previously numbered 2, now replaced by an outdoor open space and swimming pool/spa area;
•	lower height of dwellings, particularly Dwelling No.3 compared to the current proposed Dwelling No.2;
•	extent of landscaped/garden areas, particularly surrounding what was Dwelling No.3 (now Dwelling No.2) being far greater in extent than now proposed where a higher degree of paving is intended;
•	architectural style and design detail of the various elevations of each of those dwellings, compared to the dwellings now proposed; and
•	an extra visitor parking position provided in the approved layout.

46. There are similarities including the relatively similar location and layout of Dwelling No.1 in each case, front setbacks to Marchant Street and setbacks or absence thereof to the southern and south-eastern boundaries, with the general layout and arrangement of driveways and vehicle manoeuvring areas as well as the general position (but not detailed siting) of Dwelling No.3 compared to Dwelling No.2 in the current proposal, and some similarities with regard to external rendered wall and other materials.

47. Whilst it is appropriate that the expert witnesses have regard to the prior findings of this Court and consider the similarities with regard to the proposal currently before the Court, nevertheless there are clear distinguishing factors, particularly relating to design, appearance and siting that dictate, as they each undertook, a fresh and independent review of the subject proposal on its own merits against the Development Plan.

48. It is also acknowledged that the relevant Development Plan policies were essentially the same for that matter as with the current matter, though there may be some numbering alterations.

49. I also note particularly that the Court in the prior Judgment had clear and significant regard to the various zone and policy area provision but on my reading, there was limited, if any, reference or detailed consideration to several Council Wide provisions of note, including particularly those under the headings Built Mass (Principle 27), Building Setbacks (Principle 29), Townscape Context (Principle 30), Boundary Walls (Principle 22) and Heritage Conservation (Principle 56). These need to be given due weight and considered in combination with all of the other relevant provisions.

50. Hence, in summary, I find that the prior appeal represents a guide to some degree, but certainly not sufficient to dictate near-automatic approval for the subject proposal. As has been highlighted, there are several important differences and distinguishing features and all of these aspects need to be considered and weighed up to determine whether there is sufficient compliance with the Development Plan to merit consent to the application now in question.

Planning Assessment

51. In accord with case law as I understand it, noting there to be some variances, I have approached decision making in this matter mindful of the following:

•	considering the Development Plan as a whole and all relevant provisions to the matter in question including balancing the zone specific with the general provisions;
•	considering the Development Plan as a flexible, advisory planning policy document, not as a mandatory, legal statute; as a practical guide for practical application, superimposed upon an existing state of development;
•	giving no weight to the content of separate "guidelines" documents (provided by Council to the public and applicants);
•	considering the merits of the proposal as a whole, the "pros" and "cons" (points of clear compliance with guidelines or departures from them) and the position that scarcely any proposal however good, is likely to meet every provision such that no legitimate objection can be taken to it;
•	considering the proposal in question and its alignment with the Development Plan, not comparing it with or preferring over or testing it against other alternatives or a so called ideal design solution or planning outcome;
•	integrating the various criteria, reconciling inconsistencies between them and not considering them in isolation of each other;
•	distilling the overall intent, purpose and desired character of the Zone sought to be achieved via the Development Plan and the context of the characteristics and facts about the locality as a whole and the subject land (both historical and current) as well as the proposal details and whether it is conducive to the desired character and amenity of the Zone; and
•	assessing the proposal on the above basis, balancing up all relevant considerations, including the evidence, what is seen on the view and the public and private interests, in determining, on a fact and degree basis in each case, whether the proposal is sufficiently in accord with the Development Plan to warrant consent.

52. The residential land use, development of the vacant infill site, surrounded by relatively intensive housing on all sides, the number of dwellings now proposed (two) and a two-storey built form, in-principle and generically, were supported by all experts having regard to the specific relevant Development Plan provisions, and I agree. That is also consistent with the findings and decision of the Court in the prior appeal on the land.

53. I do not propose or need to assess or explore the range of interpretations possible of Zone Principle 11, which guides dwelling density (the number of dwellings that may be appropriate on the site), particularly the wording used in paragraph 2. In my view, the intent is to allow dwellings with site area averages as small as 200 square metres (though 400 square metres is considered to be the norm) in the light of association with a contributory item shown on the relevant Figure. However regard also needs to be afforded the dwelling densities in the locality (residential flats and individual dwellings, the latter on sites as small as 190 square metres). I find that what is proposed (average of 342 square metres) is most consistent and appropriate given the mix of sizes in the locality (whether that comprises the broader or the immediate locality).

54. There was agreement that the existing "Elm" tree located very close to the southern boundary and a large outbuilding, did not, having regard to the relevant tree conservation guidelines in the Plan, warrant retention. It is apparently causing substantial change to an adjoining retaining wall and is planted in an unsuitable position. It is not "notable" and I agree that its removal is justified.

55. The decision in this matter largely turns on the built form design, design detailing, siting and landscaping and in combination with several other less important, though still significant aspects relating to functional matters (parking, servicing, stormwater management) and neighbour impacts including visual, overshadowing and overlooking.

56. The following are the key relevant Development Plan provisions to guide assessment of these aspects.

Design and Built Form

"METROPOLITAN ADELAIDE

.....

OBJECTIVES

.....

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

Achievement of this objective can be assisted by development that is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight. Sunlight access, for example, not only benefits amenity, but also is necessary to enable effective use of solar energy collection systems. These systems are affected by building and allotment orientation and by shadowing from buildings and trees, and accordingly, it is desirable to protect existing collectors and recognise potential for use on sites adjacent to a development site. ...

.....

Objective 39: The amenity of localities not impaired by the appearance of land, buildings and objects.

A city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. If the city dweller is to enjoy looking at his surroundings, attention must be given to the aesthetic qualities of both natural and man-made features. The design of individual buildings should be of high standard and related to adjacent buildings. ....

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.

COUNCIL WIDE

.....

OBJECTIVES

Objective 2: A high level of residential amenity and the maintenance and protection of existing residential uses in residential zones.

.....

Objective 18: Architectural excellence allowing for design innovation consistent with sound design principles.

PRINCIPLES OF DEVELOPMENT CONTROL

.....

3 (c) create a safe, convenient and pleasant environment in which to live.

.....

16 The orientation and layout of residential buildings should take maximum advantage of sunlight by way of north-facing windows and doors to living areas.

.....

27 Buildings and structures should have a visual bulk and architectural scale consistent with structures on adjoining or nearby land and should not visually dominate surrounding spaces, unless the zone or policy area objectives or principles of development control provide otherwise.

.....

29 The front and side set-backs of buildings and their relationship to landscaped space should be consistent with the existing predominant pattern in the locality unless the zone or policy area objectives or principles of development control provide otherwise. Development on corner sites should reinforce the edges of the subject sites with building forms.

30 New buildings should complement the urban context of existing buildings on adjoining and nearby land in terms of:

(a) maintenance of existing vertical and horizontal building alignments;

(b) architectural style, building shape and the use of common architectural elements and features; and

(c) consistent colours, materials and finishes.

.....

33 Development in or abutting the Residential Zone or Historic (Conservation) Zone - Residential should not include boundary walls greater than one-storey in height. The design of all development should minimize the height of boundary walls and ensure that no unreasonable impact on adjoining property results from any walls on or near property boundaries."

57. In considering these aspects and guidelines, I have had regard to the evidence, particularly of Ms Vines, a qualified architect, and to my observations on the view.

58. The proposed dwellings, whilst presenting greater elevational length and openings to the east and west, nevertheless orientate several openings to living areas of each dwelling to the north and provide a verandah (Dwelling No.1) and high level windows and louvre screening to west facing upper levels of Dwelling No.2. I am satisfied that Principle 28 is sufficiently met.

59. The height and bulk of the dwellings are somewhat greater than that of the adjoining or nearby residential buildings, though in terms of height not by a great deal (6 metre wall and 8 metre ridgeline heights proposed, compared to nearly 4 metre height walls and 6 metre height ridgelines for traditional taller, single storey dwellings nearby).

60. All experts agreed that two-storey scaled buildings were acceptable in principle as being sufficiently consistent with buildings in the locality, provided they were sufficiently setback and/or of a height and with landscaping so as not to visually dominate the locality or adjoining dwellings.

61. The decision of this Court in the prior matter and by the Council concerning the amended proposal Exhibit A6, also inherently concluded that two-storey buildings were acceptable.

62. Whilst I have some reservations on this point, the visibility of such buildings will be localised, not greatly evident from Marchant Street, and from the adjacent positions where it may be somewhat dominant in the south-east corner (east facing two-storey element on the eastern boundary), it is adjacent to and partly screened by outbuildings and is to be set down on a level lower than the adjoining land.

63. The front setback to Marchant Street (7.4 metres to the open verandah and 8.5 metres to the main walling of Dwelling No.1), with a sufficient landscaping opportunity and tree planting proposed intervening, is consistent with that in the street. Side setbacks are varied from zero to 1.5 metres and more. The limited sections of one-storey built form on the boundary are consistent with a relatively close, dense urban development pattern in the locality and will not be perceived as such, from the street. The only aspects of concern with such a feature, and the relatively short two-storey length of wall on the southern part of the eastern boundary, relate to overshadowing and loss of light impacts (refer section below).

64. The architectural style of the buildings now reflect, to a much greater and sufficient extent, those prevalent in the locality and those buildings with local heritage significance, without mimicking or replicating them (refer next section hereunder for greater discussion).

65. Mr Rowe submitted that on the basis of the Court's finding in CSER v City of Norwood Payneham & St Peters [1999] SAERDC 14, I should find this proposal similarly too bulky and with insufficient setback, or treatments for minimising privacy loss. I am not able to do so based on the distinguishing zoning, locality characteristics and design detail.

66. On balance, I find that the design and built form aspects of the proposal are appropriate to the site and the locality as defined.

Heritage Compatibility

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OBJECTIVES

Objective 17: Development which conserves and reinforces the historic integrity of the city and is compatible with the desired future character of the appropriate zone or policy area.

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PRINCIPLES OF DEVELOPMENT CONTROL

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45 Development should not compromise or detrimentally affect the character or nature of buildings or sites of architectural, historic or scientific interest, sites of natural beauty, or places of heritage value.

46 Development should not compromise or detrimentally affect the character or integrity of buildings or sites identified as a Local Heritage Place or State Heritage Place as identified in Table KeN/1 and KeN/2.

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56 Development on properties adjoining a Local Heritage Place as designated in Table KeN/1 or any State Heritage Place as designated in Table KeN/2 should respect the heritage value, integrity and character of the Local Heritage Place, without necessarily replicating its historic detailing and should:

(a) not be undertaken if it is likely to detract by way of design, appearance or standard of construction from the heritage value and integrity of the heritage place;

(b) complement the form, massing, fenestration, rhythm, colours, and texture of materials, of the heritage place;

(c) be consistent with the overall height of surrounding buildings;

(d) have a roof shape and pitch consistent with adjacent buildings;

(e) be consistent with the siting and setback of adjacent buildings; and

(f) have the garage setback at an equal or greater distance from the street frontage as the main building.

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HISTORIC (CONSERVATION) ZONE - RESIDENTIAL

OBJECTIVES

Objective 1: Development which conserves and enhances the historic and residential character of the relevant policy areas of the zone.

Objective 2: Development accommodating a variety of housing types which are compatible with the historic character of the relevant policy area.

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The Historic (Conservation) Zone - Residential provides for a range of high-quality residential accommodation which reinforces the historic character and residential amenity of the relevant policy area.

Development should conserve and complement existing historic buildings, including the use of appropriate landscaped settings and traditional building elements, which may include fences, verandahs, balconies and hipped or hip and gabled roofs. The buildings referred to are those which contribute positively to the historic character of the zone.

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The historic character of the zone is primarily established by the nature and appearance of buildings and their settings which exist in each of the zone's policy areas, and is described in a brief, non-exhaustive manner hereunder in relation to each policy area.

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Kensington 1 Policy Area

Development in the Kensington 1 Policy Area should conserve and maintain the existing character created by buildings, settings, street patterns and natural features, which together characterise the residential urban village of Kensington. The principal historic development periods of the Policy Area are 1838 to 1860, 1861 to 1880, 1881 to 1900, 1901 to 1915 and 1916 to 1939. The buildings which represent those periods include early buildings of pise, stone or brick construction, larger Victorian-style brick and stone buildings, Federation era brick and stone buildings and bungalow-styled buildings of the post-1918 period, and these buildings are complemented by a range of settings typical of those periods. Development should have particular regard to the character of the immediate locality of the subject site.

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PRINCIPLES OF DEVELOPMENT CONTROL

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3 Development should conserve, maintain, enhance and reinforce the existing streetscape of the relevant policy area and the historic character of individual buildings, exhibiting architectural and roof-forms, designs, street frontage widths, materials, colours, fences and landscape settings which complement without effecting the reproduction of historic buildings or their detailing. New buildings should be designed to maintain the prominence of existing historic buildings.

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5 Sites which are presently incompatible with the historic character of the zone should be redeveloped.

6 Front and side boundary set-backs of development should be similar to the predominant pattern established by historic buildings in the immediate locality with particular regard to adjacent historic buildings, at the same time maintaining the prominence of existing historic buildings."

67. Compatibility of the proposed buildings with the historic character of the local area and locality (Zone Objective 2 and Council Wide Objective 17) is a question of degree and professional opinion. Ms Vines is an expert in the field of architecture and conservation and her opinion concerning Exhibit A1 and within her Statement (Exhibit R3) was that the proposal did not sufficiently reflect architectural style elements of adjacent traditional buildings (most being Contributory items Fig.HC(R)/1 and Local Heritage Places on TABLE KeN/1).

68. Ms Vines set out certain specific design elements she felt were appropriate, and I understand that the amendment Exhibit A6 has been modified with her input. The outcome reflects most of what she sought. Accordingly, roof forms, height (Dwelling No.2), verandah (Dwelling No.1), materials, colours, windows/door widths and proportions, picket fencing and other factors are now very much more reflective of and compatible with traditional styles in the locality and that of the local heritage places adjoining or nearby.

69. The partially obscured position of the site, relative to Marchant Street, together with the amended proposal detail, mean that the streetscape and historic character of the Zone will not be compromised, and sympathetic development of a vacant site will enhance to a degree, visual amenity and such character.

Landscaping

70. The relevant Development Plan clauses are:

"METROPOLITAN ADELAIDE

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PRINCIPLES OF DEVELOPMENT CONTROL

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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.

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PRINCIPLES OF DEVELOPMENT CONTROL

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31 Uncovered car parks should be located behind buildings in order to maintain continuity and character of the street elevation. Adequate screen landscaping and shade trees should be provided for all uncovered car parking areas."

71. The amended proposal Exhibit A6 has now provided more detail and integrates most of the landscaping proposals of James Hayter & Associates (Exhibit A3). An advanced "Manchurian Pear" tree is to replace the "Elm" tree at the front and numerous "Silver Birch" trees are proposed bordering driveways and one of the outdoor open space areas. Whilst Silver Birch trees are deciduous, together with selected shrubs and groundcover they will enhance amenity, and generally soften buildings and paved areas, and accordingly I find that the guidelines are sufficiently met.

Overlooking

72. The relevant Development Plan clauses are:

"METROPOLITAN ADELAIDE

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PRINCIPLES OF DEVELOPMENT CONTROL

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10 Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:

(a) for adjacent properties; and

(b) for each dwelling and private open space.

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PRINCIPLES OF DEVELOPMENT CONTROL

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34	Development should not have adverse impacts on the privacy of indoor or outdoor living areas or nearby residential premises and in particular should not lead to direct overlooking of such living areas."

73. Minimising overlooking has been addressed by the amended plans in Exhibit A6. In particular:

•	higher window sills (1500 mm or more) to Dwelling No.2 studio (north-east and north-west facing windows) and to Dwelling No.1 robe and ensuite;
•	fixed louvre screens (1700 mm in height) are proposed to the western side of the two small balconies of Dwelling No.2; and
•	the provision of a 2.0 metre wall with 2.6 metre lattice above and attached to it, around all of the eastern and the north-eastern corner boundaries, so as to minimise overlooking from Dwelling No.1 study and bedrooms and from Dwelling No.2 balcony, bathroom, bedrooms 2 and 3.

74. However, the Council seeks further view restrictions to 1.5 metres from the windows themselves and almost all others at the upper level, as well as on the east-facing balcony to Dwelling No.2. This position appears to not have regard to the screen fence proposal (fence and lattice) and to the nature of some of the rooms, where privacy is usually more a requirement and concern for the occupier, than for an external viewer. In general, this matter can be adequately addressed by conditions of consent.

75. Such a proposition for all windows at upper level, would create less than ideal conditions for occupants and I find, having regard to careful analysis of each window or other position, that it is excessive. I see no requirement to do so for Dwelling No.1 north facing study window, or for the east facing bedroom 3 window (and it is already proposed on the plan Exhibit A6 for the robe and ensuite), in the light of distance, angle and proposed screen fencing factors.

76. I can also see no requirement to require high sills or opaque glazing from Dwelling No.2 windows in bedroom 2 and bedroom 3 and the bathroom and ensuite, as well as for bedroom 1, given similar factors referred to above (and it is already proposed on the plans Exhibit A6 for the studio windows). However, I find that a 1.5 metre screening requirement on the east facing balcony adjoining bedroom 1, to be reasonable, due to proximity and angle of view to the rear open space of adjoining residential development to the north-east and east. Other features including the west facing louvres should prove adequate. All of these matters can be dealt with by conditions of consent.

Overshadowing

77. The relevant Development Plan guidelines are:

"METROPOLITAN ADELAIDE

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PRINCIPLES OF DEVELOPMENT CONTROL

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10 Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:

(a) for adjacent properties; and

(b) for each dwelling and private open space.

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PRINCIPLES OF DEVELOPMENT CONTROL

32 Development should not have significant adverse micro-climate impacts on other land and buildings, particularly with regard to:

(a)	increased overshadowing resulting in loss of winter sunlight to active outdoor living areas; ...

33 Development in or abutting the Residential Zone or Historic (Conservation) Zone - Residential should not include boundary walls greater than one-storey in height. The design of all development should minimize the height of boundary walls and ensure that no unreasonable impact on adjoining property results from any walls on or near property boundaries."

78. On my request, shadow diagrams were prepared by the appellant/architect and tendered as Exhibit A7.

79. In summer, shadowing cast from Dwelling No.1 (or Dwelling No.2) will be minimal during the more important 10am - 2pm period. Late afternoon shadow will impact a little more, though not unreasonably on the rear outbuildings and part of the private yard of 25 Thornton Street.

80. In winter (June 15 shown, though the winter Solstice is June 21), shadows cast in the middle of the day from 10am to 2pm are of concern, not so much as for the degree of effect on the rear of 25 Thornton Street, but more so on the walls/windows and outdoor living areas of the rear unit at 27 Thornton Street. Afternoon sun from 2pm onwards will be enjoyed but overshadowing for most of the day prior to that time, will be significant (in terms of Council Principle 32(a)).

81. The Council Development Plan has no specific numerical criteria in this regard and there has been no input from the affected neighbours (or certainly not brought to the Court's attention). I also note that the proposal approved by the Court in the prior appeal, would have caused similar, if not greater impact on the adjoining rear unit of 27 Thornton Street, as the whole of the second storey level and 6 metre high walls, for the same 10 metre length were to be located on the southern boundary, and not stepped back as now proposed and with a wall height of only 3 metres along the boundary. In that matter, the Court found that overshadowing had been minimised to an acceptable level.

82. In this matter, the Council now accepts the amended proposal Exhibit A6, presumably with awareness of the degree of overlooking likely to result.

83. While I again have reservations about this aspect, and there is some variance to the Development Plan guideline Principle 32, on balance, I find it to be adequate in all of the circumstances.

84. Regarding the early morning shadowing and loss of light to a northerly window on the eastern elevation of the dwelling at 7 Marchant Street, from the zero setback of the garage wall (for Dwelling No.2), there will be some impact to the occupier using that room. The wall could be lowered by 0.3 metres to 3.0 metres and with its hipped roof, it is considered that an adequate level of light should remain for that window and occupier.

Parking

85. The relevant Development Plan guidelines are:

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OBJECTIVES

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Objective10: Development which provides adequate and safe car parking appropriate to the demands generated.

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PRINCIPLES OF DEVELOPMENT CONTROL

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58 All development should be provided with adequate on-site car parking, in accordance with the following standards:

(a) residential in the Residential and Historic (Conservation) - Residential Zones:

two car parking spaces per dwelling, inclusive of visitor car parking with the exception that residential development designed and constructed for the aged, disabled and economically disadvantaged should provide car parking to adequately meet the needs of the specific occupants and their visitors;..."

86. The point at issue in the amended proposal Exhibit A6 is not the number of car spaces proposed (four undercover garaged spaces for the two dwellings) but the adequacy of those (with door enclosures) and paved areas adjacent for visitor parking. There are two to three vehicle standing positions available and whilst use of them would restrict vehicle manoeuvring and reversing to enable forward movement into and out of the site, with the option of use of one of the garage spaces, I am satisfied that the arrangements are adequate and not unsafe, though some inconvenience to occupiers of the site may occasionally arise. On-street parking in Marchant Street is at a premium but I am satisfied that the proposal should not exacerbate that. On balance, I find this aspect to be acceptable.

Stormwater Management

87. The relevant guidelines in the Development Plan are:

"METROPOLITAN ADELAIDE

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PRINCIPLES OF DEVELOPMENT CONTROL

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13 Dwellings should be supplied with adequate energy, water, waste disposal and drainage facilities to serve the needs of the prospective users.

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16 Residential development should minimize the potential for personal and property damage arising from natural hazards including landslip, bushfires, and flooding.

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PRINCIPLES OF DEVELOPMENT CONTROL

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18 Each new dwelling with direct access to ground level should be provided with a rainwater tank(s) of minimum 450 litre capacity connected to roof water outlet(s)."

88. Rainwater tanks are now included in the proposal by the appellant, though not documented or positioned on the site. A condition of consent can ensure that occurs.

89. A general stormwater drainage concept is shown on Exhibit A6, however there is a need at the technical design stage for liaison with and approval to be obtained from the Council, concerning capacity of the street watertable for additional stormwater flows and/or other arrangements external to the site. At this point, and in the prior appeal, the Council has not displayed any concern with regard to this aspect, though the co-respondent to this appeal provides anecdotal evidence of capacity issues. This matter is also capable of being dealt with appropriately by condition of consent.

Summary

90. The respondent Council has now conditionally supported the amended proposal Exhibit A6, however the co-respondents retain concerns about it. I have further considered in detail the amended proposal in the light of the prior evidence and further submissions, and on balance, I find that the development sufficiently accords with the Development Plan guidelines. I am satisfied with regard to consistency and compatibility with historic character, having regard particular to the evidence of Ms Vines, and secondly whilst I have reservations about visual impact of the building bulk due to zero or small side setbacks in some instances, overshadowing to the outdoor living space and dwelling windows to the south, and visitor parking, nevertheless, on balance I find them all to be adequate. Integrating and considering all aspects and criteria in the Development Plan and all relevant considerations, including the past decision of the Court for a development on this site, I find that the proposal warrants consent.

Conclusions

91. I conclude that conditional provisional development plan consent is warranted and that the appeal should be upheld and the decision of the Council of 17 June 2002, reversed. However, that consent is to be the subject of several conditions incorporating some of those sought by the Council and having regard to the submissions of the parties. Provisional development plan consent is therefore granted to the proposal, including removal of a "significant tree", subject to the following conditions:

1.	The development shall proceed in accordance with the details of Development Application No.155/1108/01 and the approved plans drawing numbers Job 200 11238, sheets 1 and 2 prepared by Salvatore Bibbo architect and marked Exhibit A6, except where varied by the following conditions of consent.
2.	The upper floor windows of Dwelling No.1 to the robe, ensuite and south-east facing hall landing, shall have a window sill height of at least 1.5 metres above the internal floor level.
3.	The upper floor windows of Dwelling No.2 to the studio, bathroom and ensuite, shall have a window sill height of at least 1.5 metres above the internal floor level.
4.	A solid or opaque screen of at least 1.5 metres in height above the finished floor level of the upper level shall be erected above the entire eastern side length of the balcony adjacent bedroom 1, Dwelling No.2.
5.	The "Manchurian Pear" and "Silver Birch" trees proposed and shown on the plans to be planted, shall be of advanced growth and in the order of 2 metres in height at the time of planting. The trees and landscaping depicted on the site plan herein approved, shall be undertaken prior to occupation of the dwellings.
6.	All landscaping shall be protected from vehicles and pedestrians by concrete kerbing or other similar barrier.
7.	The person or persons, for the time-being making use of the subject land shall, in all respects to the reasonable satisfaction of Council, cultivate, tend and nurture trees, shrubs, creepers and lawns established in accordance with Exhibit A6, replacing any trees, shrubs, creepers and lawn which dies or becomes diseased.
8.	All stormwater from buildings and paved areas shall be disposed of in accordance with recognised engineering practices in a manner and with materials that does not result in the entry of water onto any adjacent property or any building and does not affect the stability of any building, and such stormwater shall be drained to the Council's stormwater system to the reasonable satisfaction of the Council with such details to be submitted to and approved by the Council prior to development approval.
9.	The western wall height of the double garage for Dwelling No.2 shall be reduced by 0.3 metres to a height of no more than 3.0 metres above natural ground surface level along the boundary.
10.	The swimming pool pump housing shall be enclosed and acoustically attenuated to minimise noise nuisance and meet the relevant standards and policies of the Environment Protection Authority.
11.	A rainwater tank with a minimum capacity of 450 litres shall be installed for each dwelling and with the overflow connected to the stormwater system or other approved soakage system, to the reasonable satisfaction of the Council.
12.	Existing fencing along the western boundary and adjacent the new north-western courtyard, shall be retained.
13.	The 1.7 metre high louvres proposed on the western elevations of balconies at the upper level for Dwelling No.2 shall be fixed at an angle so as to minimise downward view and maximise horizontal view, to the reasonable satisfaction of the Council, with such details being submitted to and approved by the Council prior to the issue of development approval.
14.	Temporary fencing, adequate to retain pets, shall be installed by the developer to all boundaries where existing fencing is removed and prior to new boundary walls being erected.
15.	Unless otherwise approved by the Council, paved areas designed to carry vehicular traffic on the subject land or on footpaths adjoining the subject land shall be constructed using clay brick or concrete block paving bricks.
16.	All brick or block paving in driveways, parking areas and footpaths shall be laid in accordance with recommendations and standards contained in the Brick Development Research Institute Design Manual 1-1989.
17.	The footpath pavement and footpath driveway/crossover shall be constructed using concrete block paving of a shape and colour to the approval of the Council.

92. There will be an order accordingly.