Della Flora v City of Unley No ERD-02-563 [2003] SAERDC 4 (18 February 2003)

Last Updated: 23 February 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

11/12/2002, 11/02/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for two semi-detached dwellings - Residential A400 Zone - the compatibility of the siting and design of the building the principal planning issue - semi-detached dwellings as a generic use of land not in conflict with the objectives and principles of the zone - the extent to which the character of the locality is reflected in the design detail considered - fundamentals of the locality's `American bungalow' character to be weighed against the various architectural styles that exist in the area - space between buildings, front setback and bench-heights important design factors - deficiencies able to be remedied with design changes - amended plans (two options) tendered - Option 1 considered satisfactory in the circumstances - appeal upheld - decision of Council reversed - provisional development plan consent granted subject to six conditions.

• Development Act 1993 , referred to.

Representation

Appellant: JULIA DELLA FLORA
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

Respondent: CITY OF UNLEY
Counsel: MR P LEADBETER - Solicitors: NORMAN WATERHOUSE

ERD-02-563

Judgment No. [2003] SAERDC 4

18 February 2003

JULIA DELLA FLORA

v.

CITY OF UNLEY

(ERDC No. 563 of 2002)

[2003] SAERDC 4

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. In this matter Julia Della Flora ("the appellant") has appealed against the decision of the City of Unley ("the Council") to refuse the issue of provisional development plan consent in respect of a proposal to construct two single storey semi-detached dwellings at 8 Jenkins Avenue, Myrtle Bank ("the subject land").

2. The development application was submitted to the Council in December 2001. In its original form, the application proposed the construction of two group dwellings. During its passage through the Council's administration and assessment process it was amended and dealt with in the form now before the Court. The Council determined the proposal to be a Category 2 development and issued the appropriate notification. Seven representations - mainly in the nature of objection - were received.

3. The Council rejected the proposed development on 11 June 2002. It informed the applicant (then Eastern Building Group) of its decision in the decision notification dated 14 June 2002. The Council's notification also provided the following as its reasons for refusal:

• "the proposal fails to meet the minimum site frontage requirements;

• the proposal is not sufficiently compatible and complementary with the existing built form character of the locality; and

• the proposal does not provide safe and convenient parking arrangements."

4. At the hearing Mr Hilditch appeared for the appellant and Mr Leadbeter for the Council. The Court viewed the subject land and properties in its near vicinity. It received several exhibits and heard evidence from Mr David Gibson (planning consultant), Mr Peter Hignett (planning consultant and architect) and Mr Peter Dunlop who resides at 10 Jenkins Avenue (immediately adjacent to the southern boundary of the subject land).

5. Mr Leadbeter informed the Court that the Council's case would not include evidence or submissions in relation to its third reason for refusal. I accept Mr Leadbeter's submission. Although this Court considers any matter before it afresh the facts and circumstances of this appeal suggest to me that Council's assertion that "the proposal does not provide safe and convenient parking arrangements" has little, if any, foundation.

6. The proposed development comprises two single storey semi-detached dwellings. Each dwelling is intended to sit on an allotment having a frontage of 9.15 metres, a depth of 53.14 metres and an area of 485 square metres. Each dwelling has an area of 191.29 square metres (including 13.78 square metres for the combined area of the verandah and atrium) and contain 2 bedrooms, study, lounge, family/meals/kitchen and the usual service areas. Each site has 154 square metres of open space at the rear of the dwelling. The nearest part of Dwelling 1 (the verandah) is 10.75 metres from Jenkins Avenue. The equivalent part of Dwelling 2 is setback 10 metres.

7. In Mr Gibson's view, the design of the dwelling "borrows elements of the adjoining bungalow style of housing including:

• feature weatherboard gables over the front verandahs of the building (one smaller than the other);

• gable ends to the front portion of the building;

• timber framed windows to the front elevation; and

• iron roofing."

8. I have reflected Mr Gibson's views in this respect as an indication of that which appears to have been intended by the proponent of the development. Mr Hignett, on the other hand, contends that these design elements are not sufficient to ensure compatibility with the character and siting of dwellings in the locality.

9. For all intents and purposes, both expert witnesses agreed on the extent of the "locality". It includes dwellings on both sides of Jenkins Avenue from Clinton Avenue to a point about 60 metres north of the junction of Jenkins Avenue and Cross Road. It also includes two or three properties in Hexham Avenue immediately adjacent the rear of the subject land.

10. In his statement (Exhibit R2), Mr Hignett included a photographic survey of Jenkins Avenue in a series of diagrams as the means of describing the character of the locality. The key aspects of his opinion in this respect are as follows:

"In my opinion the locality has a cohesive character based largely on the strong 'urban design linkage' of a straight road, closed at one end and bending at the other, lined with mature trees with predominantly detached dwellings of generally homogeneous character based on a circa 1920 style patterned on the California or American bungalow of approximately the same period (refer to Diagram 7). Dwellings are generally surrounded by generous space and landscaping (Diagrams 3 & 5).

.....

I am of the opinion that the most important components of the locality character related to the linkage provided by street trees and wide footpaths together with front gardens (refer to Diagram 3 Photograph 27) and the low overhanging gabled roofs, heavy verandah piers, asymmetrical elevation and horizontal aesthetic of the California style bungalows shown particularly on Diagram 3, Photographs 19 to 22, two of which adjoin the subject land (shown on Diagram 3, Photographs 7 and 9).

.....

The predominant style of buildings within the locality reflect an Australian interpretation of the Californian style which does not copy but rather seeks to understand the basic philosophy thereby creating what has become a recognised stage in the development of Australian vernacular."

11. Mr Gibson's statement also describes the locality. On pages 3 and 4 of Exhibit A2, he identifies several properties - within and outside of the locality - having upon them dwellings of a type that, in his view, are not representative of the bungalow style. They include conventional hipped and gable roofed types, tudor, villa and contemporary styles, hipped-roof semi-detached dwellings and red brick colonial style units.

12. The subject land is depicted on Map Un/10 in the Development Plan for the Council. It is within the Residential A400 Zone, which zone covers part of Myrtle Bank and Kings Park. The Residential A400 Zone has two objectives expressed in the following terms:

"Objective 1: A zone primarily accommodating detached dwellings on individual allotments."

"Objective 2: Preservation of the existing residential character, provided by the preponderance of detached dwellings, uniform set-backs and a high standard of landscaping."

13. These objectives are followed by nine principles of development control. Principle 1 effectively repeats Objective 1. Principle 2 provides allotment area guidelines of (not less than) 400 square metres per dwelling. It also provides guidelines in respect of hammerhead allotments. Principle 5 encourages development to be primarily accommodated by infill between existing dwellings or replacement of incompatible land uses. Principles 6 and 7 show that the proposed development to be neither a complying nor non-complying form of development.

14. Principles 3, 4, 8 and 9 have no relevance in this matter.

15. These provisions are supplemented with several statements about the existing features of the zone and its desired character. Those relevant in this matter are as follows:

"Existing Features

..... The rectangular allotment pattern has provided the base for a coherent pattern for housing characterised by the bungalow style of dwelling commonly built after the period of subdivision with similar side and front set-backs. Allotment sizes are generally between 400m² and 800m² in area in a landscape setting characterised by mature exotic and native trees, mature private gardens and substantial front fences. Wide footpaths and both exotic and native street trees combine with mature private gardens in many streets to provide a sense of enclosure of buildings by surrounding trees and gardens.

Desired Character

..... It is intended to continue as an established residential area containing mainly single-storey detached dwellings on individual allotments with some limited infill.

.....

Development will reflect the siting, external scale, form and appearance of surrounding detached dwellings. Single storey detached dwellings on individual allotments should form the bulk of development in the Zone.

Development will complement housing density and form having particular regard to set-back from allotment boundaries, the bulk of buildings as they are viewed from the street and roof forms and roof materials of surrounding existing detached dwellings. Ratio of window areas to wall areas in front elevations of existing surrounding housing should be reflected in development.

.....

External materials of brick, brick render or stone are preferred for housing development."

16. Several other Council wide (General) provisions apply. In the circumstances, particularly in light of the common ground that existed between the experts, I need only deal with those that have some bearing on the planning issues that are at the nub of this matter.

17. Both agreed that the provisions of the Development Plan when properly applied did not foreclose the possibility of intensifying residential development in the zone. Both also agreed that the subject land is (generically) suitable for a semi-detached form of development. Furthermore, there appears to be agreement about the compliance of the proposal when it is examined against those performance criteria and design techniques that deal with site coverage, private open space, car parking, rear setbacks and the width of garages. Having examined the relevant provisions of the Development Plan and considering the circumstances in some depth I agree with their conclusions.

18. The principal planning issues that might bring the proposed development into conflict with the Development Plan revolve around the question of whether the siting of each of the dwellings (which are on allotments which fall short of the numerical standards for their width) and their design (in particular their height, scale, bulk and architectural features) are compatible in the locality. These matters find expression in the following provisions (and supporting text) of the Development Plan for the Council:

GENERAL

"Objective 5: 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/her surroundings, attention must be given to the aesthetic qualities of both natural and constructed features. The design of individual buildings should be of high standard and related to adjacent buildings."

Principles of Development Control

"12 All development should relate in terms of its setting, height, scale and bulk to that appropriate for development in the subject zone and should also be complementary with existing surrounding development in the locality, in particular adjoining residential development."

"22 Development should incorporate landscaping as an integral part of the design of the development and include plants with a mature height, scale and form to complement and relate to that of the development."

"41 Residential allotments¹ should have the appropriate area and dimensions:

(a) for siting and constructing a dwelling and ancillary outbuildings;

(b) for locating private outdoor space directly accessible to a dwelling;

(c) for convenient vehicle access and parking; and

(d) to reinforce the desired future character of surrounding development in the relevant Zone.[1]

¹ Residential allotments include Torrens title allotments and

primary, secondary, tertiary etc allotments created under

community schemes."

LAND USE

"Objective 25: A compact metropolitan area.

This objective may be achieved through selective development of infill housing, redevelopment and refurbishment of existing housing, and use of vacant land and under utilised land with the aim of reducing the social, environmental and economic cost of urban development, and maximising use of the community investment in facilities and services in existing housing areas. While a compact form of development is generally desirable, recognition must be given to areas of particular character or amenity, or to specific constraints such as environmental or historical value."

"Objective 27: Preservation and enhancement of the character of residential areas through sensitive and selective in-fill and replacement development and retention and rehabilitation of existing sound and attractive housing."

Principles of Development Control

"63 The appearance of buildings and land should not detract from the desired future character of the locality having particular regard to:

(a) building mass and proportion;

(b) the manner in which buildings address public streets;

(c) external materials, patterns, textures and decorative elements;

(d) ground floor height above natural ground level;

(e) roof form and pitch;

(f) facade articulation and detailing including window and door proportions;

(g) verandahs, eaves and parapets;

(h) landscape character;

(i) driveway crossovers, fence style and alignment; and

(j) height of external walls (refer Figure 1)."

"65 The roof form and design of semi-detached dwellings in localities where the predominant dwelling type is detached dwellings should achieve the general appearance of a detached dwelling (refer Figure 3)."[2]

"67 Entries to dwellings should:

(a) be clearly visible from streets which they front so that visitors can easily identify a particular dwelling (without overemphasising porticos in terms of their scale relative to the dwelling);

(b) provide shelter;

(c) give residents a sense of personal address; and

(d) be designed for maximum resident security."

"69 Garages and carports should:

(a) be of a width that is minimised relative to the width of the frontage;

(b) have a roof form and pitch, scale, building materials and detailing that do not detract from the character of the associated dwelling (refer Figure 4);

(c) not visually dominate the street elevation of the associated dwelling; and

(d) where located in proximity to side boundaries, have a roof form which articulates the garage/carport from the roof form of the associated dwelling and reduces the visual impact on adjacent dwellings (refer Figure 5)."[3]

"71 Fences and walls abutting streets (excluding secondary street frontages and lanes) should:

(a) be compatible with the associated development and with the existing predominant and attractive fences and walls in the locality; and

(b) enable some visibility of buildings from the street and to the street to enhance safety and surveillance."

"73 Set-back of dwellings (other than carports and garages) from public roads should:

(a) contribute to the desired future character of the area (as described in Residential Zone provisions);

(b) provide adequate visual and acoustic privacy by separating habitable rooms from pedestrian and vehicle movement;

(c) provide for the efficient use of the site;

(d) be similar to or compatible with set-backs of:

(i) adjacent dwellings; and

(ii) dwellings in the locality; and

(e) not dominate the streetscape character of the locality."

"74 Garages and carports attached to the side of a dwelling and facing a public street frontage should:

(a) not diminish the attractiveness of the streetscape;

(b) not dominate presentation of the associated or adjacent dwelling to the street (refer Figure 12);

(c) provide for adequate on-site car parking;

(d) not adversely impact on the amenity of neighbours;

(e) not adversely impact on the safety of adjacent road users; and

(f) provide for adequate sight-lines for reversing manoeuvres onto the street;"[4]

"75 Sites for detached, semi-detached and row dwellings should have a primary street frontage which reinforces the desired future character of surrounding development in the relevant zone."[5]

19. Mr Hignett opined that the deficiencies in the proposed development are principally two fold. Firstly, the space between the proposed dwellings and the existing dwellings either side of the subject land did not reflect the spacing evident elsewhere in the locality. Secondly, to be consistent with the character of the locality and its (bungalow) building style, the proposed development needs to be of a particular scale and architecture.

20. Mr Hignett described the built form in the locality as one having a scale comprising "broad, bold, chunky buildings that have the classic component of our local version of the [Californian bungalow] style". He went on to say that the scale and character are emphasised by the combination of "big verandahs with timber beams that span between solid posts ..... [which] provide a very strong frontage with deep shadows" and 25 degree substantial roofs (transcript p.50).

21. In the end, Mr Hignett opined that, to achieve the desired outcomes, the allotments would need to be wider than those in the proposal and the architecture of the dwellings would need to be altered considerably.

22. Mr Gibson holds the view that the minimum site frontage guidelines (Design Technique 41.3) is unnecessary in the circumstances. He opined that a number of "trade-offs" have been made to ensure the development sits comfortably in its setting having regard to its bulk and scale, its appearance, its functionality, existing setback arrangements and other positive elements in the zone including the provision of sufficient front yard landscaping. Among other things, his list of trade-offs included front, side, rear setbacks and private open spaces being larger than called for in the relevant performance criteria or design technique and a smaller site coverage than called for in Design Technique 78.1.

23. Mr Dunlop also gave evidence. He resides immediately south of the subject land. Mr Dunlop raised several objections to the proposed development, many of which seem to me to be without foundation. On the evidence one could not reasonably conclude that the lifestyle sought and experienced by Mr Dunlop is likely to be eroded any more than it would in the event that the subject land was developed with a large detached dwelling. However, Mr Dunlop drew attention to the question of the potential for a loss of his privacy. His evidence gave cause to look more closely at the proposal plan. It seems that the designer has given little attention to the finished floor level of the proposed dwellings as it relates to adjoining land. The elevation plan (Exhibit A1), in my view, provides an incorrect picture of the relationship between the height of the windows along the side of each dwelling and the top of the fence.

24. As said previously, having considered the evidence of the experts, the provisions of the Development Plan and the locality, I have reached a similar view to that of both witnesses as to the generic suitability of the proposal. Nothing that I heard or saw would lead me to conclude that, as a use of land, two semi-detached dwellings were unsuitable in the locality.

25. However, such a conclusion cannot sit alone, particularly so in the Residential A400 Zone. The principles are constructed to ensure that new dwellings are the subject of particular consideration against a vast array of general planning provisions. Furthermore, the desired character statement guides the design of a dwelling in particular ways - the expression of which is supported in Zone Objective 2 and several other more general provisions referred to earlier. Those provisions have a particular purpose - to ensure compatibility with particular attributes of the zone considered worthy of protection and preservation. Unless there are specific conditions which prevail in the zone which may have the effect of compromising the character sought, such provisions should be afforded some weight.

26. Just how far should the design of a new dwelling be taken to ensure compatibility? What aspect(s) of the local character might be given specific emphasis for the development to adequately satisfy the relevant provisions of the Development Plan? In the event that the original character has been tarnished, should the design seek to reinstate or restore the character to its former self or should it reflect - and thus reinforce - the reality of that which exists? These are just some questions of many of a similar ilk that often confront this Court.

27. The experts witnesses were at odds on questions such as those. It appears to me that Mr Hignett's approach would take the design to a much finer detail than would Mr Gibson's were they given the task of defining the specific design parameters in the circumstances. Nevertheless, Mr Gibson, although satisfied with the design as it stands, conceded some aspects might be improved.

28. That the façade of the proposed building is stylised on the bungalow character is obvious. It might, as Mr Hignett said, be done better. However, subject to further consideration below, I do not consider the approach suggested by Mr Hignett to be necessary in the circumstances. It appears to me that the character of the locality is very pleasant. However, when one takes an overall view of it, the dwellings within it display various styles and architectural treatments as noted by Mr Gibson. Thus, I do not view this section of the zone to be as cohesive in its bungalow character as does Mr Hignett, nor do I agree with his assertion that the predominant style of building is that of a bungalow. This is not to say that one should ignore the foundations of the locality's character. However, in the circumstances the design particularity advocated by Mr Hignett with respect to the proposed development is not warranted.

29. Nevertheless, there are aspects about the proposed development that bring it into conflict with those provisions of the Development Plan which speak about compatible development and the protection of the amenity of the locality (see for example Zone Objective 2, General Objective 5 and Principle 12, and Land Use Objective 27 and Principle 63). Mr Hignett's concern with the apparent space between the proposed development and its neighbours is warranted. When one examines the siting of the existing buildings in the locality in some detail there is, on the one hand, a variety of setback distances from side boundaries, some of which are quite large and others - particularly where extensions have been undertaken - are quite narrow. Despite this inconsistency, views along the side of the dwellings seem to be a common aspect of the character which contributes to the openness of the locality. Secondly, as I have said, the elevation plan in Exhibit A1 conveys a wrong impression about the slope of the land, the necessary build-up required (therefore the height of each dwelling with respect to its neighbours) and the potential for the amenity of the neighbours to be adversely affected. Finally, both the front setback and the treatment of the front yard are not sufficiently consistent with the established character.

30. In my memorandum to the parties dated 6 January 2003, I advised that these deficiencies were sufficient to support the decision by the Council to refuse consent. However, I further advised that with careful and sensitive design changes the proposal could be brought into adequate conformity with the relevant provisions. After consideration of all of the circumstances, I provided the appellant with the opportunity to amend the proposal in such a way as to address the principal issues of concern. In my memorandum I invited the appellant to consider the following:

•	Convert each garage to carports with open sides and without roller doors (thus increasing the apparent setback of the building from side boundaries).

•	To be consistent with the provisions of Land Use Principle 73 and Zone Objective 2, set the main face of the building back in line with No. 10 Jenkins Avenue (12.8 metres).

•	Both porches to be deepened to provide additional shadow and texture to the façade and to be more in keeping with the foundations of the locality's character (General Objective 5 and Principle 12 and Land Use Principle 63).

•	The rear portion of the dwellings are to be lowered (ie. stepped down) to ensure a more appropriate relationship between the finished floor level of that portion of the building and the rear yards of adjoining dwellings (General Objective 5).

•

Increase the area for soft landscaping within the front yard by removing the pedestrian pathway and ensure that any fencing between each dwelling (along the future allotment boundary) is to be low and of minimal visual impact. A detailed landscaping plan should accompany these amendments (General Principle 22).

31. When the matter resumed on Tuesday 11 February 2003, Mr Hilditch presented two amended plans, Option 1 and Option 2 (Exhibits A3 and A4 respectively) for my consideration. He indicated that Option 2 was preferred by the appellant. Mr Leadbeter indicated that Option 2 suited the Council. Both parties agreed that a suitably modified version of the recommended conditions on pages 15 and 16 of the Copy Documents (Exhibit R1) were appropriate.

32. I have considered both options. Except for the inclusion of a garage in Option 2, both plans adequately address the matters of concern to me. However, I am of the view that Option 2 (Exhibit A4) does not adequately address the matter of an apparent setback and openness between the proposed and existing buildings.

33. Accordingly, the appeal is upheld, the decision of the Council reversed and provisional development plan consent is granted for two single storey semi-detached dwellings at 8 Jenkins Avenue, Myrtle Bank (Development Application No. 090/01276/01/DX) subject to the following conditions:

1.	Development is to take place in accordance with the plans marked Exhibit A3, except as modified by the conditions below, and all works detailed in the approved plans and required by conditions be completed prior to the occupation of the development approved herein.

2.	That all stormwater from the building and site be disposed of so as to not adversely affect any properties adjoining the subject land.

3.	Any difference in finished ground levels between the subject site and adjoining sites at the boundary shall be retained by an appropriate wall or plinth of masonry, concrete, new sleeper or similar appropriate construction.

4.	The pumped system in accordance with AS 3500.3.2 shall be used for the disposal of site water and sealed system for roof water.

5.	If the finished ground is falling towards the boundary, then a concrete kerb 100mm high shall be constructed along the boundaries. The kerb shall form an effective barrier for retaining site stormwater.

6.	The finished floor level of the front section of the dwellings shall be 89.96 as shown on the approved plans.

34. There will be an order accordingly.

^[1] Design Technique 41.2 indicates that a 12.5 metre frontage for each semi-detached dwelling satisfies this principle. Design Technique 41.4 is also relevant.

^[2] Figure 3 in this principle is also relevant.

^[3] Design Technique 69.1 is also relevant.

^[4] Design Technique 74.1 is also relevant.

^[5] Design Technique 75.1 is also relevant.