Cairo v City of Norwood, Payneham & St Peters No ERD-02-565 [2003] SAERDC 5 (18 February 2003)

Last Updated: 23 February 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

18/12/2002, 13/02/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for two detached dwellings - Residential 2A Zone - impact of the size of the buildings and setback distances on the amenity of the dwellings and locality the key planning issues - proposed development generically accords with the objective of the zone - very few aspects of the locality to which the text under Metropolitan Adelaide Objective 6 is directed - setback distance from street boundary an important consideration - proposal as presented to the Court displays symptoms of an `over-development' - opportunity to amend plans - amended plans submitted - `Option 2' accords with relevant provisions - appeal upheld - decision of Council reversed - provisional development plan consent granted subject to five conditions.

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

Representation

Appellant: TOM CAIRO
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF NORWOOD, PAYNEHAM & ST PETERS
Counsel: MS A NICHOLLS - Solicitors: NORMAN WATERHOUSE

ERD-02-565

Judgment No. [2003] SAERDC 5

18 February 2003

TOM CAIRO

v.

CITY OF NORWOOD, PAYNEHAM & ST PETERS

(ERDC No. 565 of 2002)

[2003] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. In April 2002, Mr Cairo ("the appellant") applied to the City of Norwood, Payneham & St Peters ("the Council") for provisional development plan consent to demolish the dwelling at 11 Arnold Avenue, Firle ("the subject land") and construct two single storey detached dwellings in its place. On 12 August 2002, Council refused the issue of the consent sought. In its decision notification dated 15 August 2002, the Council provided the reasons for its decision in the following terms:

"(i) Metropolitan Adelaide Objective 6 and Council-Wide Objective 9 in that it does not lead to the attainment of a pleasant living environment and does not enhance the residential amenity of the area;

(ii) Council-Wide Principle of Development Control 13 in that the space around the building is not considered to be appropriate to the locality; and

(iii) Council-Wide Principle of Development Control 40 in that the appearance of the land and buildings will impair the locality."

2. Mr Cairo was aggrieved by this decision and appealed to this Court. As the issues in dispute were not settled at the conference held pursuant to Section 16 of the Environment, Resources and Development Court Act 1993 the matter proceeded to a hearing. Mr Botten appeared for the appellant and Ms Nicholls for the Council. Planning evidence was given by Mr Marchetti and Dr Gupta.

3. The proposed development is detailed in Mr Marchetti's statement (Exhibit A1). Although a computer generated three-dimensional image of the proposal appears in Mr Marchetti's statement it is of limited assistance in gaining further insight into the nature of the proposal and its impacts. The image includes some features which I understand are not intended to be provided in the development. Accordingly, I will not place any particular reliance on it or references to it made by Mr Marchetti in his statement or oral evidence.

4. The proposed development comprises two symmetrical detached dwellings on the subject land. Each dwelling is 169 square metres in area and comprises 3 bedrooms, study, lounge, family/meals/kitchen and the usual amenities. The subject land has an area of about 724 square metres, a frontage of 17.98 metres and a depth of 40.20 metres. It is intended that each dwelling will occupy a site area of 362 square metres with a frontage of 8.99 metres. The total site coverage of each dwelling is 46.6 per cent. Dwelling 1 has a rear open space area of 80 square metres. Dwelling 2 has 75.7 square metres of private open space. Dwellings 1 and 2 are setback 6 metres and 6.5 metres from Arnold Avenue respectively.

5. Dwelling 1 is setback 1 metre from its western boundary; its garage shares the boundary with Dwelling 2. The garage for Dwelling 2 shares the boundary with the carport associated with the dwelling to the east; the remainder of the dwelling being setback 1 metre from that boundary.

6. At the outset of the hearing the Court was informed that a significant tree located on the front boundary of the subject land -which is to be removed to facilitate the proposed development - is not a matter in dispute. I will therefore take this aspect of the proposal no further.

7. Exhibit R1 reveals that the proposal was first dealt with by the Council (through its Development Assessment Panel) on 8 July 2002. As a consequence, by letter dated 11 July 2002, the Council advised the appellant that it had deferred its decision to "enable staff to negotiate with the applicant to achieve:

(a) articulation to the frontage to give each dwelling more individuality.

(b) an increase in the front setbacks to be in keeping with the predominant pattern in the locality.

(c) increase in the private open space to the rear of the dwelling.

(d) reconfiguration of the driveway access to the western-most dwelling in order to avoid the dog-leg in the driveway."

8. Mr Cairo declined to make the changes requested. However, it appears that some amendments in respect of items (b) and (d) in the Council's letter have been made to the plans now before the Court.

9. Mr Marchetti and Dr Gupta defined a "locality" for the purposes of their statements. They differ but not substantially so. Having considered the evidence and viewed the land in the general vicinity of the subject land I have concluded that the area formed by merging the localities of both planners is the relevant locality. The following are excerpts from Mr Marchetti's statement which describes the relevant circumstances:

"Dwellings within the locality are generally single storey brick homes with tiled roofing, of similar architectural style typical of dwellings built in the 1960's/1970's. A two storey brick dwelling is located opposite the subject site at 10 Arnold Avenue, ..... .

..... the allotment which adjoins the subject site's western boundary (9 Arnold Avenue) is currently being developed into two detached dwellings, each containing a frontage of approximately 8.5 metres to Arnold Avenue, ..... . These dwellings will be rendered brick veneer and are typical of contemporary courtyard homes situated on lot sizes in the order of 350 square metres.

Building setbacks from street frontages are reasonably consistent at a distance of 7-8 metres. ..... the recently approved development at 9 Arnold Avenue ..... contains a building setback of approximately 6 metres from its street frontage.

Building setbacks from side boundaries within the locality vary from 0-4 metres."

10. The subject land is depicted on Map Pay/7 in the Development Plan for the (former) City of Payneham. It is located within the Residential 2A Zone. This zone has a single objective expressed in the following terms:

"Objective 1: A zone primarily accommodating detached dwellings on individual allotments, with residential flat buildings not exceeding one storey in height, row dwellings or semidetached dwellings in suitable areas."

11. Three principles of development control follow the zone's objective. Principle 1 effectively repeats Objective 1. Principle 2 indicates among other things that a detached dwelling is a complying development subject to compliance with certain conditions. Principle 3 lists a considerable number of land uses that are non-complying in the zone. The type of land use proposed in this matter is not within this list.

12. Other provisions of the Development Plan of relevance are as follows:

METROPOLITAN ADELAIDE

"Objective 1: Orderly and economic development."

"The future form and nature of the existing metropolitan area will be influenced by meeting housing choice in the metropolitan area. Current and anticipated demographic trends in the metropolitan area indicate population growth but a changing population structure, with falling dwelling occupancy rates and declining population in many areas, particularly in the inner and middle suburbs, will necessitate increasing dwelling density to maintain population levels.

While taking these trends into account, there are social, environmental and economic benefits to be gained from higher residential densities within the metropolitan area.

It is an essential element in the future development of Adelaide, to address concerns about increased housing demand, efficient use of urban infrastructure and population change. This can be achieved by increasing the number of dwellings that can be accommodated within the existing boundary of the metropolitan area, and arresting and perhaps reversing the decline in population which has been evident in many parts of the metropolitan area."

"Objective 6: 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 and underutilized land, with the aim of reducing the social, environmental and economic costs of urban development, and maximizing 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 constraint such as environmental or historical value, water catchment areas and areas of bushfire hazard."

"Objective 7: A variety and choice of dwelling types to meet the needs and preferences of all sections of the community.

Residential development within metropolitan Adelaide should be based on a flexible approach to provision of a wide range of dwelling types."

"Objective 8: Containment of housing costs through the encouragement of a full range of design and development techniques.

This can be achieved by measures such as the economical layout of residential development, the reduction of allotment sizes and street widths, the use of innovative servicing techniques, the encouragement of designs which use space efficiently and effectively, and the provision of medium-density residential development where appropriate. In addition, new building materials and energy saving devices can be used to reduce housing costs."

"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. Residential zones should provide primarily for residential uses. New non-residential activities should generally not be located in residential zones, and extensions of existing non-residential activities should only occur where there is no adverse effect on nearby residential activities."

"Objective 43: 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

"3 Residential zones should be developed with housing to meet the needs of the metropolitan community."

"4 Residential development should efficiently use infrastructure and services."

"8 Residential development should not create conditions which are likely to exceed the capacity of existing roads, public utilities, and other community services and facilities."

"9 Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live."

"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."

COUNCIL WIDE

Principles of Development Control

"3 New housing and other urban development should:

(a) form a compact and continuous extension of an existing built-up area;

(b) be located so as to achieve economy in the provision of public services; and

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

"13 The floor space, and bulk of a residential building and the space around the building should be appropriate to the locality in which the building is to be erected."

"40 The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated."

"43 No building should be erected, added to or altered on any land so that any portion of such building will be erected, added to or altered nearer than eight metres to the existing boundary of any road, or to the boundary of any land shown as being required for road widening on the Plan deposited under the provisions of the Metropolitan Adelaide Road Widening Plan Act, 1972-1976."

13. Mr Botten submitted that the Residential 2A Zone contemplates the form of development proposed. He said that it is primarily assigned to accommodate detached dwellings but nevertheless contemplates a range of other dwelling types with no particular guidance with respect to density - unlike the Residential 2 and Residential 3 Zones. Thus, he submitted, it is a zone that contemplates change. However, since the zone provisions do not provide detailed quantitative or qualitative guidelines against which the proposal may be assessed, regard should be had to the Metropolitan Adelaide and Council Wide provisions and the effect of the development "on the ground".

14. The presentation of Mr Botten's case was assisted by the evidence of Mr Marchetti which may be summarised as follows:

•	The proposal will make more efficient use of under-utilised land and existing infrastructure services and will meet the changing needs of the population.
•	There are specific services in the locality which support an increase in residential density.
•	The design of the proposed development allows for setback distances between buildings sufficient for it to be consistent with the streetscape character.
•	The open space associated with each dwelling is consistent with other dwellings in the locality and (in the absence of specific guidelines in the Development Plan) exceeds the minimum standards in the resource planning document "Good Residential Design SA".

15. Mr Marchetti recognised that the proposed setback from the street is smaller than that which generally prevails. However, he was satisfied with the proposal in this respect having regard to the setback distance of the dwellings under construction immediately to the west.

16. Ms Nicholls appeared for the Council and called on Dr Gupta in support of its decision. Ms Nicholls submitted that the locality is not suited to the accommodation of the proposed development. The development, she submitted, would not be consistent with the positive attributes of the locality's character - principally its openness, allotment widths, setbacks and the way that dwellings within it address the street. Ms Nicholls recognised the presence of the dwellings under construction immediately to the west of the subject land. On the influence of that development on the locality she was at odds with Mr Botten. In effect, Ms Nicholls submitted that that development is a mistake which should not be repeated.

17. Ms Nicholls' submissions went further in presenting the case for the Council than did the evidence presented by Dr Gupta. On close examination Dr Gupta formed the view that the proposal was unsuitable principally on the basis that it did not comply with the particular conditions for complying development contained in Table Pay/1. As Mr Botten said, such an approach by an expert witness incorrectly applies the provisions of the Development Plan. Nevertheless, Dr Gupta drew the Court's attention to the importance of the established setback distances from Arnold Avenue to each existing dwelling and the contribution that such a spatial arrangement made to the locality's character. Dr Gupta also opined that, if the dwellings were joined to form semi-detached dwellings, much of his concern would be removed.

18. The proposal is, generically, in accord with the form of residential development primarily sought in the Residential 2A Zone - that is, for detached dwellings. That they are proposed at a higher density than exists in the locality and that they are to be sited on allotments much smaller than the conditions for complying development is a matter of fact. However, to determine whether such a development is suitable it is often useful to pose three interrelated questions. Firstly, in an overall land use planning sense, is such a development consistent with the provisions for the Residential 2A Zone (particularly Objective 1 and Principle 1) when read in conjunction with Metropolitan Adelaide Objectives 1, 6, 7 and 8 and Council Wide Principle 3? On this question I have carefully considered all of the facts, circumstances and evidence. I find Dr Gupta's evidence to be of no assistance in this respect. Neither his statement nor oral evidence provided an appropriate analysis of the proposal within the circumstances and the provisions of the Development Plan when properly applied. Mr Marchetti touched on this question in his statement under the heading of "Urban Consolidation" and supported his broad assertions in his oral evidence. After considering his evidence and all of the relevant circumstances, I find that the provisions of the Development Plan generally speak in favour of the proposed development within the zone.

19. Secondly, is this locality a "suitable area" (within the meaning of that phrase in Zone Objective 1) for new development of the type proposed? Little guidance is to be found in the zone provisions to answer this question. Some assistance might be gained by considering that part of the text following Objective 6, which is expressed as follows:

"While a compact form of development is generally desirable, recognition must be given to areas of particular character or amenity, ....."

Thus, the question then becomes this: Is the locality one having a particular character and amenity to which due recognition is to be given?

20. The locality is pleasant but not exceptional. It has a good but not high level of amenity. The character and amenity are principally derived from the type, age and quality of its buildings (detached dwellings), its accessibility, width of Arnold Avenue, setback distances and front yard landscaping. Its amenity is somewhat affected by outbuilding "add-ons" that are visible. Nonetheless, there are examples of refurbishment having been undertaken.

21. The dwellings under construction at 9 Arnold Avenue are a new element in the street. They are particularly notable because of their (forward) position when compared with the road setback distance generally prevailing in the area. Their location is not a matter generally for the Court to make comment. Nevertheless, the presence of these buildings has interrupted a generally consistent setback pattern.

22. Having carefully considered all of the circumstances I have reached the conclusion that there are very few, if any, aspects of the locality's character or amenity which would preclude the form of development proposed. Granted, the frontages will be smaller than that which exists generally. However, that difference is to be considered along with the relatively modest (streetscape) scale of the buildings, the (undisputed) fact that services within the near vicinity of the subject land will all provide support and the influence that the development now underway at 9 Arnold Avenue and other building improvements and "add-ons" have on the general character of the locality.

23. Finally, is the proposed development suitable in its immediate environs? When this question is posed, the proposal displays certain shortcomings. Despite the presence of the dwellings under construction at 9 Arnold Avenue, the remainder of the non-corner properties in the street have setbacks of 8 metres or more (a feature which makes, in my view, an important contribution to the character and amenity of the locality). This general consistency in the locality finds support in Council Wide Principle 43. Were this to be applied - and it is my view that a greater setback than that proposed is warranted - the available open space would be reduced to an unacceptable extent. Such a "spill-over" effect is symptomatic of an "over-development" of the subject land. In this respect I find that the proposal is in conflict with Metropolitan Adelaide Principle 9 and Council Wide Principles 3(c), 13 and 40 to a significant extent.

24. However, these difficulties seem to me to be readily dealt with. I canvassed certain design changes with Mr Botten at the conclusion of the hearing. I put to him that the particular changes might be suitable in the event that the bigger questions about the proposed development were answered in its favour. The changes I had in mind would see Dwelling 1 setback 7 metres and Dwelling 2 setback 8 metres from Arnold Avenue but the same setback distances from the rear and side boundaries being retained (that is, the area of private open space remaining as proposed). The amendments would require changes to the internal design of the dwellings to be made consistent with the available private open space. I also suggested that consideration be given to the design of the front yard spaces to reduce the impact of any (future) dividing fences.

25. The appellant was amenable to these changes. I offered the opportunity to amend the plans accordingly and for the parties to prepare a list of conditions appropriate in the circumstances. In doing so, I advised the Council to consider the effect of the position of the driveway associated with Dwelling 1. It appeared that its position would require the removal of a street tree. I advised that should the tree be required to be retained, one way to deal with such an issue is to reintroduce a "dog-leg" into its alignment. Such a design change would be appropriate and would be the type of amendment which will, when taken together with the differential setbacks between Dwellings 1 and 2, act to provide individuality to each of these dwellings.

26. When the matter resumed on Thursday 13 February 2003, alternative plans were tendered (Exhibits A2 and A3 - Options 1 and 2 respectively) for my consideration. The principal difference between them is in the design of Dwelling 2. Having considered both options I have reached the conclusion that the plan in Exhibit A3 is most suited to the relevant circumstances.

27. However, it appears that the position of the street tree remains unclear. I consider it important to retain that tree and, if necessary, the driveway serving Dwelling 1 is to be redesigned accordingly. The parties agreed that this aspect of the development can be addressed by an appropriate condition.

28. For the reasons given the appeal is upheld and the decision of the Council is reversed. Provisional development plan consent is granted for the demolition of the existing dwelling and the construction of two single storey detached dwellings in its place at 11 Arnold Avenue, Firle (Development Application No. 155/00315/02) subject to the following conditions:

1.	The development shall proceed in accordance with the details of Development Application No. 155/00315/02 and the approved plans marked Exhibit A3.

2.	All stormwater from the buildings and paved areas shall be disposed of in accordance with recognised engineering practices in a manner and with materials that do not result in entry of water on to any adjoining property or any building, and does not affect the stability of any building.

3.	That the finished floor levels of the dwellings shall be 200 millimetres above kerb level.

4.

In the event that the driveway and crossover serving Dwelling 1 is so located that, in the opinion of the Council, tree-damaging activity will occur to the existing street tree as a consequence of construction works, the driveway and crossover shall be relocated to the reasonable satisfaction of the Council.

5.	In the event that a dividing fence separating the front yards of Dwellings 1 and 2 is to be provided, such a fence shall be no higher than 1 metre and shall be a "picket", tubular upright or similar open type, to the reasonable satisfaction of the Council.

29. There will be an order accordingly.