Tucker v City of Burnside No ERD-03-65 [2003] SAERDC 49 (29 April 2003)

Last Updated: 4 May 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson (ex tempore)

Hearing

28/04/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application to construct upper level additions and alterations to existing single storey dwelling - Residential R550 Zone - refused by Council - appeal - non-compliance with stipulated upper level side setback - relevance of existing adjoining two-storey dwellings - no adverse streetscape or other consequences caused by proposal - general conformity with other relevant Development Plan provisions - Provisional Development Plan Consent granted, subject to conditions.

• Development Act 1993 , referred to.

Representation

Appellant: KAREN TERESA TUCKER
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN AND ASSOCIATES

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

ERD-03-65

Judgment No. [2003] SAERDC 49

29 April 2003

KAREN TERESA TUCKER

v

CITY OF BURNSIDE

(ERDC No 65 of 2003)

[2003] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an applicant appeal against a decision, made by the City of Burnside ("the Council") on 4 February 2003 to refuse Provisional Development Plan Consent to an application by Karen Teresa Tucker (the Appellant") which application sought approval for the construction of upper level alterations and additions at 16 Seaforth Avenue, Hazelwood Park.

2. The Council's reason for refusal was that " the upper level side setbacks are less than 4 metres and therefore do not conform with the quantitative provisions of the Development Plan".

3. At the hearing of the appeal, the Council was represented by Mr J Hilditch, of counsel and the Appellant by Mr J Botten, of counsel. The Court, in the company of the parties, conducted a view of the subject land and its locality, and heard evidence from Mr G Burns and Dr S Gupta, both qualified and experienced town planning consultants.

4. At the conclusion of proceedings I issued an ex tempore judgment as follows:

"I am not generally given to issuing extempore judgments but it seems to me that the issues in this matter are fairly limited, and, essentially, as I think the two planning witnesses agreed, it comes down to an assessment of the streetscape impact of the proposed development.

On the evidence of Dr Gupta and Mr Burns, the specific concerns referred to in paras. (a)-(d) in Zone Principle 7 will not be raised by the proposal. That, of course, still leaves room for other matters and what the two planning witnesses were agreed on was that Zone Principle 7 also admitted the possibility of a failure to comply with a side boundary setback raising issues of streetscape concern.

As Mr Botten observed in his final address, it is established law that no provision of the Development Plan can have mandatory effect or be directory. There is authority for the proposition that there are some provisions of the Development Plan to which particular weight should be given and that these should be set aside only where there are good planning reasons for doing so. I do not see side boundary setback provisions as being in that category. It does seem to me they are very much dependent on context. They can, I think, be quite important in addressing the specific concerns referred to in Zone Principle 7 but in this case the prescribed 4.0m setback distance for an upper level is not required to address those specific concerns.

Do the proposed setbacks create a development which will sit uncomfortably in the established streetscape? In my view they do not. The fact is that we have, on either side of the dwelling on the subject land, two-storey buildings or at least part two-storey buildings, the two storey elements being set back 3.0m or thereabouts, on the one hand, and on the other, something like 4.0m to 5.0m. The spacing between buildings which will be maintained by the proposal will be in the order of 4.0m on one side, and 5.0m - 6.0m on the other.

Clearly, side setback requirements have to be applied with some degree of flexibility in circumstances where the existing built form context suggests that the strict application of those requirements is either unnecessary or pointless. Many of the existing dwellings in the locality would not satisfy the current requirements expressed in Zone Principle 7, but as a consequence of well-established landscaping and a considerable diversity of architecture, there is a pretty high level of amenity in this locality. The proposal will, in my view, be compatible with that amenity.

With reference to Dr Gupta's concerns regarding the proposal limiting the options for the future redevelopment of the land adjacent to the north-west, it seems to me that development proposals have to be assessed in their existing context unless, for example, there is an extant approval for redevelopment for adjoining or nearby land. When and if the land adjoining to the north-west is redeveloped, the provisions of the Development Plan may well be very different to those which currently apply, and it would be an exercise in futility, in my view, to premise a decision in this matter on assumptions about the timing, likelihood or nature of redevelopment occurring on that land.

On balance, having regard to the range of side setbacks in the locality which were evident on the view, and to the scale and nature of existing development in that locality, I am satisfied that the proposal will be set back sufficiently from adjoining development and be sufficiently well articulated to sit comfortably in the existing streetscape and satisfy the most relevant of the Development Plan provisions, including Zone Objective 1 and Principle 6(a) and (b), Council Wide Principles 23 and 121 and Metropolitan Objectives 9 and 42 and Principle 9.

That being the case, the proposal's failure to comply with the quantitative requirements of Zone Principle 7 should not be fatal, in my view. Accordingly, I have decided that the decision of the Council to refuse the proposal was incorrect and should be overturned. I will be making an order granting provisional development plan consent to the proposal subject to conditions along the lines of those set out in the Copy Documents on Page 36. Some variation, I think, will be required as a consequence of amendments to the proposal plans made subsequent to the Council decision, but in that general form I think those conditions are appropriate."

5. There will be an order accordingly.