Whitington & Ors v City of Burnside & Domain Project Devt P/L No ERD-02-532 [2003] SAERDC 13 (3 February 2003)

Last Updated: 13 February 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Cole, Commissioner Mosel and Commissioner Brine

Hearing

11/11/2002 to 14/11/2002, 17/01/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for conversion of existing aged care facilty to student accommodation - Council granted provisonal development plan consent subject to 9 conditions - third party appeal - proposed development does not constitute "residential development" - issues of overlooking and noise - within a Community Use Zone - the proposal is in accordance with the relevant provisions of the Development Plan and general planning principles - decision of the Council to grant provisional development plan consent is varied with substituted conditions.

• Development Act 1993 ;
• City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56;
• Railway Assessment Authority v Great Western Railway [1948] LJR 244;
• M & V Trading Pty Ltd v Shorecolt Pty Ltd [2001] NSWSC 1166;
• The Council of the City of South Sydney v Dominic Giles Sharpe [1998] NSWLEC 140;
• Beer v South Australian Planning Commission & Others (1988) 142 LSJS 20, referred to.

Representation

Appellant: ROBERT JOHN WHITINGTON & OTHERS
Counsel: MR S HENRY - Solicitors: STUART MAIN & ASSOCIATES

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

Respondent: DOMAIN PROJECT DEVELOPMENT PTY LTD
Counsel: MR B HAYES QC - Solicitors: JAMIE BOTTEN & ASSOCIATES

ERD-02-532

Judgment No. [2003] SAERDC 13

3 February 2003

ROBERT JOHN WHITINGTON & OTHERS

V

CITY OF BURNSIDE

&

DOMAIN PROJECT DEVELOPMENT PTY LTD

ERDC 532 of 2002

[2003] SAERDC 13

THE COURT DELIVERED THE FOLLOWING JUDGMENT

1. In this matter, we have determined that provisional development plan consent will be granted to the proposed change of use of the land at 204 - 207 Watson Avenue Rose Park to student accommodation, and associated changes to the buildings and on-site arrangements, subject to conditions.

The Application

2. Domain Project Development Pty Ltd ("Domain") applied on 22 February 2002 to the City of Burnside ("the Council") for provisional development plan consent in relation to the land at 204 - 207 Watson Avenue Rose Park ("the land"). The proposed development for which approval was sought was described in the application as "Conversion of existing aged care facility to student accommodation". The certificates of title for the land and a set of proposal plans were provided to the Council with the development application form. A "management statement" and a planning report from MasterPlan were provided to the Council on 4 March 2002.

3. The application was processed as a Category 3 kind of development which was neither complying nor non-complying. It was the subject of public notification. Numerous representations were received from occupiers in the area around the land, opposing the proposed development. There were also several supportive representations from former users and neighbours of a student accommodation facility in Glandore.

4. The Council resolved on 2 July 2002 to grant provisional development plan consent to the application, subject to 9 conditions. Many of the representors to Council appealed from that conditional approval to this Court.

The Land

5. Improvements on the land consist of an eight-storey building (floors - ground to seven), a two-storey building connected to the eight-storey building, carports, a maintenance workshop, an aviary, gardens, driveways and yard areas.

6. The eight-storey building was approved in 1968, and from the time that it was built, until 1999, the land was used for accommodation or care for aged people. The evidence was that in the later years of that land use, the two-storey building contained 10 independent living units and the eight-storey building contained a 31 bed nursing home (on the first and second floor), a 70 bed hostel (on the third to seventh floors) and a caretaker's flat. Eldercare Inc ran the facility. It was vacated in 1999 because Eldercare Inc moved that part of its operations to a new facility on King William Road, Wayville. There has been no intervening use of the land.

The Development Plan

7. In assessing the proposed development, we have adopted the approach set out by the Full Supreme Court in City of Mitcham v Freckmann [1999] SASC 234; (1999) 74 SASR 56.

8. The land is shown in the Development Plan on Burnside (City) Zones Map Bur/3, within a Community Use Zone which is almost surrounded by a Historic (Conservation) Zone. The objectives and principles for the Community Use Zone appear on pages 64 and 65 of the Development Plan for Burnside. Many of the Metropolitan Adelaide and Council wide provisions of the Development Plan are also relevant to the proposed development. They are set out in the statements of the expert planners, and we have had regard to the evidence in relation to them.

9. The Objectives for the Community Zone are as follows:-

"Objective 1: A zone to accommodate community, educational and health care facilities.

Objective 2: Provision for the current and identifiable future needs of such institutions in a manner that does not adversely affect the use and enjoyment of adjoining land.

Objective 3: Residential development as an alternative land use within the zone."

10. It was argued on the part of the appellants that these objectives should be read in order of preference, so that a land use supported by Objective 1 - say, a health care facility - would be considered more favourably than a residential development supported by Objective 3. We reject this argument. The objectives speak with equal force, and the numbering of them has no significance with respect to the weight to be attached to them.

11. It was argued on behalf of the developer that the proposed development could be categorised as a community or educational facility. None of the expert planners who gave evidence relied on this view of Objectives 1 and 2. The Council planner who recommended conditional approval of the proposal, however, took this view. We do not consider that the proposal is one for a community or educational facility as those terms are used in Objective 1 of the Community Zone. It is a proposal for the provision of accommodation, not education. The term "educational facilities" was not intended to extend to facilities to cater for the non-educational needs of those using educational facilities. The word "community", in this context, implies use or potential use by the local community, though not necessarily exclusively. It is clear on the evidence that the target market for the proposed development is students from overseas or from rural Australia. Objectives 1 and 2 do not speak to the proposal.

12. It was argued on behalf of the appellants that the proposed development does not constitute "residential development", and does not therefore come within Objective 3. "Residential development", it was said, implies long term or indefinite occupation and not the periodic occupation which is proposed. It was conceded that this assessment is a matter of fact and degree. The evidence was that it is anticipated that some students could reside on the land throughout the years of a degree, whilst others might stay for a period of weeks only, on a trial basis. Part D of exhibit A is an "Agreement to Rent a Room at Alexandra Lodge", and that document contains the endorsement "Minimum 6 Months". Taking into account all of the evidence of the likely use of the facility, we have determined that the majority of residents are likely to occupy the building for a sufficient length of time so that the proposal falls within the meaning of "residential development" in Objective 3. We reject the argument that the only form of residential development permissible in the Community Zone is that form of residential development envisaged by Principle 8. If the Development Plan had meant to say that, then presumably it would have done so. In addition, Principle 8 deals with built form, and this proposal does not.

13. The Community Zone in Principle 9 lists kinds of development which are non-complying in the Community Zone. Included in that list are "Hotel", "Private Hotel", and "Residential Club". It was argued on behalf of the appellant that the proposed development would be a "Private Hotel" and was therefore non-complying, and should have been processed accordingly. "Private Hotel" is a term which is not defined in the Development Regulations 1993. In support of his contention that the proposal would be a private hotel, Mr Henry cited the Macquarie Dictionary definition of "private hotel", which is "a hotel or boarding house, usually unlicensed and often residential, where guests are accepted at the proprietor's discretion". He also cited the Australian Concise Oxford Dictionary definition: "a hotel not obliged to take all comers". The description of a private hotel by the House of Lords in Railway Assessment Authority v Great Western Railway [1948] LJR 244 confirms that it is an essential component of a private hotel that there is no obligation to admit the public generally. "Private hotel" is defined in the South Sydney Local Environmental Plan 1998 as "an hotel which is used primarily for short-term residential purposes but is not a boarding house", and this definition is quoted in M & V Trading P/L v Shorecolt P/L [2001] NSWSC 1166. The term is also defined in the South Sydney Local Environmental Plan No.109 - Rental Accommodation (LEP 109), in clause 5, to mean "a hotel used primarily for short term residential purposes which is not licensed under the Liquor Act 1982". This definition is quoted in The Council of the City of South Sydney v Dominic Giles Sharpe [1998] NSWLEC 140. Though not directly applicable as definitions in respect of the use of the term in the South Australian Development Plans, these definitions are of assistance in ascertaining the characteristics of a private hotel within the meaning of the South Australian plans. In our determination, a private hotel is an establishment which offers meals (though not necessarily the full range of meals) and accommodation to the public at large, or to a section of the public, reserving the right to refuse services on any lawful basis. It may or may not hold a liquor licence. The greater part of the business of a "private hotel" will be the provision of meals and temporary accommodation to travellers. The taking of accommodation for a period longer than a month in a private hotel would be exceptional. A "private hotel" has much in common with a motel, as defined, and with a bed and breakfast, which is an undefined but well known land use. The proposed development is not a private hotel within the meaning of Principle 9 of the Community Zone in the Burnside Development Plan.

14. The proposed development is not included in the list of non-complying kinds of development. There is no point, therefore, in seeking to categorise it further in terms of the uses defined in the Development Regulations, Schedule 1, as such categorisation would have no consequences for the assessment of the proposal.

15. The developer has styled the proposed land use as "student accommodation". The question arises as to whether there is any consequence, in planning terms, arising from the use of the accommodation by students. If there is not, then it may be that what the Council has approved is a form of accommodation facility which may be described as a boarding house or a multiple dwelling. It was put very clearly on behalf of the developer that the developer sought to limit the offering of accommodation to students. Students, it was argued, rarely own cars, and this has an impact on both the need for parking on-site and traffic movements to and from the site. A concern was put on behalf of the appellants that the term "student" could encompass a very broad range of people, who would not share the particular common circumstances which make it unlikely that they would own a car. For example, a student from Malaysia studying at the Adelaide University may be unlikely to own a car. An Australian student at trade school, undertaking frequent periods of work experience, or working for a wage, would be likely to own a car. Both are students. Mr Salleh, in his evidence, concentrated on students attending universities and secondary schools in the metropolitan area. It seems to us that there is a planning purpose for the use being described as and confined to "student accommodation", in accordance with Mr Salleh's description, principally on the basis of carparking requirements. We note that in several cases in Victoria, the term "student accommodation" has been used without any analysis or argument, presumably on the assumption that it was a clear enough label for a land use.

16. It was argued that the use of the land for student accommodation would take from the Community Zone a significant amount of the land available within it for community use. Economics were likely to be such, it was argued, that, once devoted to such a use, it would be unlikely to return to a community use. This argument places too much reliance on the title of the zone, and too little on its objectives. It is clear from Objective 3 that residential development is envisaged as an alternative land use within the zone. According to the Macquarie Dictionary (2nd revised edition, 1987) "alternative" means:

"1. a possibility of one out of two (or, less strictly, more) things:... 2. one of the things thus possible:... 3. a remaining course or choice:..."

17. There is no implication in the word "alternative" that either of the two choices is superior to the other. We do not read the Development Plan as saying that all other options must be exhausted before residential development can be considered. The presence of Objective 3 in the Community Zone also shows that it was not intended to reserve the Community Zones for community uses, or to confine residential development to Community Zone Area 3 (Queen Victoria Hospital).

18. An argument was put on behalf of the appellants that because the land is in a part of the Community Zone which borders upon the Historic (Conservation) Zone, Rose Park Policy Area, that the principles of that Zone and Area should be taken into account in assessing the proposed development. We accept that an assessment of development near a Zone border should take into account the provisions of the adjacent zone. However, this principle is of limited usefulness to the appellants in this case, because the building on the land is pre-existing, and most of the objectives and principles of the Historic (Conservation) Zone and Rose Park Policy Area deal with the physical form of development.

19. It is clear from the relevant provisions of the Development Plan that if the land were vacant, and the construction of the building on the land were the subject of a current application, the Development Plan would speak strongly against it. However, the building exists, and we accept the evidence that it is sound. Ms Bell, the planner who gave evidence for the appellants, accepted that the principle of adaptive reuse of buildings is an important principle in town planning. In other words, if a sound building exists upon a site, and there is a use to which it can be put which is acceptable when assessed against the provisions of the relevant Development Plan, and general planning principles, then the devotion of that building for that use is a desirable outcome. Acceptance of this principle was implicit in the evidence of the other expert planners also.

20. Student accommodation is a suitable use for the existing building having regard to the provisions of the Development Plan and general planning principles.

21. It was argued on behalf of the appellants that the proposed development was too heavily reliant upon the skills of Mr Salleh as the manager of student accommodation, and that less expert management than Mr Salleh could offer may well bring about a situation where the student accommodation had an adverse effect on its neighbours. Beer v South Australian Planning Commission & Others (1988) 142 LSJS 20 was referred to. We agree that it is inappropriate to tie provisional development plan consent to a particular individual. A land use is either acceptable, or it is not - the skills of an individual should not be relied upon to make it so. However, particularly in complex land uses, such as hospitals, supermarkets and many other forms of enterprise, a degree of competent management is assumed, as any complex land use (and many simple ones) can become a nuisance to its neighbours if people behave badly.

Impacts of land use

Overlooking

22. Users of the building on the land will have a view of surrounding houses. Those views are intrusive, particularly to the west. The potential for overlooking arises because of the height of the building and the position of its windows. We accept that students residing in the building are more likely than nursing home or hostel residents to look out of the windows. The proposed use of land would therefore aggravate the overlooking problem. This issue can be addressed to a satisfactory degree by the imposition of a condition requiring the western windows to have installed devices which permit a view from the window in a straight horizontal line or upward - not downward. It was argued that such measures were only necessary from areas to which access could be gained by all users of the building, and not from bedrooms. We disagree. All of the windows on the western side of the building require this treatment, except for those at ground floor level.

Noise

23. It is in the nature of a development appeal that hypothetical situations are debated. It is necessary to speculate about what might happen, and what is likely to happen, if a given development is approved and proceeds. On the basis of the evidence of Dr Swift, together with the evidence of Mr Salleh, we are satisfied that the proposed development is unlikely to have an adverse effect overall on the locality on account of noise. In so finding, we rely on the picture painted by Mr Salleh in relation to the likely activities of those residing in the buildings on the land. Our assessment in this respect is tied closely to the detailed proposal for student accommodation, and would not apply to any other kind of boarding or lodging house on the site. We will impose conditions to ensure that some of the noise ameliorating behaviour put forward on behalf of the second respondent is enforceable.

Illumination

24. We accept the uncontested opinion of Mr Kemp, an engineer with particular expertise in lighting, to the effect that light spill from the proposed development will not cause a nuisance in the locality.

Traffic and Parking

25. The sole expert called in relation to traffic and parking issues was Mr Murray Young. On the basis of the information given to him by Mr Salleh, Mr Young concluded that the 27 on-site parking spaces proposed (shown on the plan prepared by Mr Young, which is exhibit H) should be sufficient. We accept this conclusion.

26. Mr Young had no concerns about traffic movements generated by the development and we accept his evidence that these are unlikely to have any detrimental effect.

Character

27. Some concerns were expressed by witnesses who live in the locality of the land about the change in character to the area which might result from having the occupants of the student accommodation facility walking in the streets and simply being present in the locality. These concerns were not strongly pressed. We do not consider that the proposal will have a detrimental impact upon the character of the area arising from the simple presence of its occupants.

Conclusion and Summary

28. The land is generically suitable, in accordance with the relevant provisions of the Development Plan and general planning principles, for student accommodation in the form proposed by the second respondent. Given compliance with appropriate conditions, it is unlikely that residents in the locality of the proposed development will experience unacceptable impacts.

29. The decision of the Council to grant provisional development plan consent is varied and the following conditions are substituted for those imposed by the Council:-

1. The proposed development must be undertaken in accordance with the plans the subject of the development application being the plans marked as Exhibits I and J as amended by Exhibit H (hereinafter referred to as "the approved plans"), save and except as varied by these conditions.

2. All of the carparking areas, driveways and vehicle manoeuvring areas must be constructed, drained and paved with bitumen, concrete or paving bricks in accordance with sound engineering practice and appropriately line marked to the reasonable satisfaction of the Council.

3. All of the carparking areas, driveways and vehicle manoeuvring areas must be maintained in a good and substantial condition at all times to the reasonable satisfaction of the Council.

4. All parking areas must be made available free of charge at all times to residents, visitors and all other users of the development herein approved.

5. At least one adult supervisor, not being a student occupant of the premises, must be in attendance on the premises on a 24 hour basis to ensure that no unreasonable noise, anti-social behaviour or other nuisance is caused to residents living near to the site.

6. The number of students and caretakers/supervisors residing on the site is to be no greater than 109.

7. Refuse collection must not occur on weekends or outside the hours of 7.30am and 5.00pm on week days.

8. The area surrounding the refuse disposal bin must be kept clean and tidy at all times.

9. The windows on the western side of the student accommodation building as depicted on the approved plans, except those at ground level, must have installed devices which permit a view from the window in a horizontal line or upward, but not downward, to the reasonable satisfaction of Council prior to the use of the premises for student accommodation.

10. Visitors to the site will be permitted only between the hours of 7.00am and 10.00pm on any day.

11. Cooking will not take place in any location other than the areas designated as kitchens on the approved plans.

12. Access to the student accommodation building and the lift must be by electronic key method or other similar method.

13. The site must be landscaped, in accordance with Exhibit J, within one year of the commencement of the use of the premises for student accommodation, and the landscaping must be maintained to the reasonable satisfaction of Council.

14. With the exception of staff and the children of an adult supervisor residing on the premises, no person will be permitted to be an occupant on the site unless he or she is:-

14.1 a student currently enrolled full time in, and attending at, a secondary or tertiary educational establishment;

or

14.2 a student currently enrolled full time in, and attending at, an English language or other course undertaken as a prerequisite to admission to a secondary or tertiary educational establishment in South Australia.

15. With the exception of staff, no person will be permitted to be an occupant on the site unless he or she is ordinarily domiciled overseas, interstate or outside the area of metropolitan Adelaide.

16. Prepared meals and a laundry service shall be made available to occupants at all reasonable times.

17. With the exception of a single trial period of no longer than two weeks for each occupant, each occupant must enter into a written tenancy agreement, the minimum term of which must be 6 months.

18. The premises must be managed in accordance with a set of House Rules substantially in accordance with Annexure A to Exhibit A. All occupants must be required to sign the House Rules upon entering into their lease. In the event of any inconsistency between the House Rules and these conditions, these conditions will prevail.

19. No outdoor portion of the premises will be used for any function at which amplified or live music or entertainment is provided. Where amplified or live music or entertainment is provided inside a building on the site, it shall cease no later than 10.00pm.

20. The premises must not be the subject of a liquor licence.

21. Any external lighting must be designed, installed, managed and maintained such that light spill from the site does not contravene Australian Standard AS 4282 and does not cause nuisance at any premises within the locality.

22. The games room on the ground floor must not be used after 10.00pm. No piano on the premises will be used after 8.00pm.

23. Access to and use of the south facing balcony must be limited to management only, and privacy screens to a height of 1.7 metres must be provided at the western and eastern end of this balcony before the premises are used for student accommodation.

24. No mechanical plant or equipment on site will exceed a noise level of 45 dB(A) measured at any site boundary.

25. The premises must be managed so that no more than 20% of the students in occupation at any given time may keep a motor vehicle on or in the vicinity of the site.

26. No portion of the area around the building on the site shall be used for barbecues, the preparation or taking of meals, entertainment, functions, parties or any similar activity after 10.00pm.

30. There will be an order accordingly.