A & A King Developments Pty Ltd v City of Norwood, Payneham & St Peters No ERD-03-107 [2003] SAERDC 69 (1 July 2003)

Last Updated: 6 July 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

19/06/2003 to 20/06/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for nine two-storey dwellings - Mixed Use A Zone - proposed development between two single storey semi-detached dwellings on narrow sites (one being a local heritage item) - planning issues centre on the impact of the bulk, scale, appearance and siting of the proposal on the adjoining dwellings and compatibility with the Local Heritage Place - the role of an expert witness considered - purpose of the Mixed Use A Zone considered with respect to residential development - proposed development would have an unacceptable impact on the amenity of the adjoining residential uses and would compromise the integrity of the Local Heritage Place - the decision of the Council confirmed - appeal dismissed.

• Development Act 1993 , referred to.
• Regano Industries Pty Ltd v The Director of Planning and the District Council of Meadows (1969) SAPR 89, considered.

Representation

Appellant: A & A KING DEVELOPMENTS PTY LTD
Counsel: MR J MCELHINNEY - Solicitors: HUNT & HUNT

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

ERD-03-107

Judgment No. [2003] SAERDC 69

1 July 2003

A & A KING DEVELOPMENTS PTY LTD

v.

CITY OF NORWOOD, PAYNEHAM & ST PETERS

(ERDC No. 107 of 2003)

[2003] SAERDC 69

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. In October 2002, A & A King Developments Pty Ltd ("A & A King") applied to the City of Norwood, Payneham & St Peters ("the Council") for provisional development plan consent to demolish the existing dwellings at 28-34 King Street, Norwood ("the land") and, upon the vacant land so created, construct nine two-storey dwellings. The decision of the Council to refuse provisional development plan consent was made on 10 March 2003. A & A King appealed the decision, thus giving rise to these proceedings.

2. The land which is the subject of the application for development (Development Application No. 155/00954/02) is located between King Street and Mattingly Lane. It is about 1532 square metres in area (having a frontage of 32.94 metres and depth of about 46.9 metres) and is more particularly defined as Lots 74, 75 and 76 in File Plan 3.

3. The application was processed by the Council as a Category 3 development. Although the development application form described the proposal as a development for "nine townhouses", the Council defined the proposed buildings as "nine two-storey dwellings in the form of two group dwellings, six row dwellings and one 'undefined' dwelling together with landscaping". A number of representations were received from persons who live in the vicinity of the land. The representors included Ms Gayle Chapman and Dr Kathryn Oaten, both of whom reside in dwellings immediately adjacent the land. Both gave evidence in these proceedings.

The Nature of the Proposed Development

4. At the commencement and during the course of the hearing Mr McElhinney, who appeared for the appellant, tendered amended plans for the proposed development (Exhibits A1 and A5). The nature of the amendments do not give rise to any question about the jurisdiction of the Court in this matter. For convenience, I have reproduced the floor plans and elevations in Appendix 1 to this decision.

5. The following details provide an overview of the siting and other arrangements that have relevance in the assessment of the proposal:

•	Site areas vary from 132 square metres to 186 square metres
•	Average site area 149 square metres (excluding 191 square metres of common space)
•	Open space per unit varies from 37 square metres to 46 square metres
•	Setbacks from streets:-
Ø	3.1 metres to 4.0 metres (King Street)
Ø	0 to 0.3 metres (Mattingly Lane)
•	Setbacks from side boundaries:-
Ø	0.6 metres (front)
Ø	0 metres (rear)
•	Wall height 6.8 metres (maximum)
•	18 car parking spaces (undercover)
•	Architecture - contemporary/modern vernacular

- materials include rendered masonry walls (side), split-face block work and timber battens (front), anodised aluminium windows

6. The proposed dwellings will replace buildings that are in a particularly poor state of repair. No significant trees exist on the land.

The Planning Context

7. Dr Oaten's dwelling is immediately adjacent the western boundary of the land. It is a single storey semi-detached dwelling situated on an allotment about 6 to 7 metres wide and has, like most other allotments, frontages to King Street and Mattingly Lane. The dwelling has two windows, which serve habitable rooms, along its eastern wall. The rear yard has within it a pergola and narrow laundry and garden/lawn space.

8. Ms Chapman's house is also a single storey semi-detached dwelling which is located immediately adjacent the eastern boundary of the land. It is contained in the list of Local Heritage Places in Table KeN/1 of the Development Plan for the Council (consolidated 27 June 2002). The allotment on which her dwelling is situated is about 7 metres wide. A garage is located at the rear of her land with access from Mattingly Lane.

9. Mr Mark Baade and Mr Francis McIntyre, both of whom are qualified and experienced planners, gave evidence during the proceedings. Each included in their statements a locality plan. While there are some differences in the areas that they defined, for the purposes of this appeal, their locality's amount to the same thing. In essence, the locality which is appropriate in the assessment of the proposal includes the properties on the northern and southern sides of King Street and Mattingly Lane between Runge Street and Sydenham Road.

10. Within the locality is a mixture of residential, commercial, warehouse and light industrial uses. The residential uses comprise dwellings built around 1900 and several constructed in very recent years.

11. Amenity in the locality is not particularly high and diminishes appreciably in the southern sector as a consequence of the commercial development on the southern side of Mattingly Lane. Within King Street, amenity brought about by the presence, design, disposition and activities associated with commercial buildings is offset and enhanced somewhat by recent large scale residential development.

12. The land and locality generally is defined on Map KeN/1 (Overlay 1) and KeN/3 in the Development Plan for the Council. It is located in the Mixed Use A Zone. This zone has one objective, several principles and supporting text. The provisions of the zone of relevance in these proceedings follow:

MIXED USE A ZONE

"Objective 1: Development providing a range of uses including small-scale offices, warehouses and retail showrooms and residential use.

The Mixed Use A Zone contains a mix of residential and small-scale office, warehousing, manufacturing and processing activities. Activities established on sites within the zone may further develop provided they achieve compatibility with adjoining uses and minimize adverse impacts on the amenity of adjacent properties.

New buildings within the zone should be of a scale which represents existing development, in particular the scale of former and existing residential structures within the area. Development on Magill Road and Sydenham Road frontages should be of larger scale and bulk."

Principles of Development Control

"1 Development in the Mixed Use A Zone should be primarily for offices, retail showrooms and warehouses, with residential development."

"3 The hours of operation of businesses should not detrimentally affect the amenity of the zone."

"4 Residential development should take account of existing sources of noise and air pollution in site layout, orientation, design and construction to ensure a safe and comfortable residential environment and to minimize conflict with existing non-residential activities."

"5 Car parking and service areas should be located at the rear of buildings."

"7 Where development includes basement, part-basement or at-grade beneath-building car parking, it should not interrupt the continuity of the streetscape in both horizontal and vertical planes and should be visually screened from the street."

"8 Development in the Mixed Use A Zone should not exceed two storeys in height above mean natural ground level except for residential development with frontage(s) to arterial roads, which should not exceed three storeys in height above mean natural ground level."

"9 The average site area per dwelling unit for residential development in the Mixed Use A Zone should not be less than 120 square metres."

13. An examination of all provisions in the zone reveals that the proposed development is neither complying nor non-complying.

14. The issues in this appeal also call for consideration of several other provisions in the Council Wide and Metropolitan Adelaide sections of the Development Plan. They are as follows:

•	Council Wide Objectives 1, 2, 3, 17 and 18 and Principles 3, 15, 16, 27, 29, 30, 32, 33, 34, 46 and 56.

•	Metropolitan Adelaide Objectives 1, 6, 7, 8 and 39 and Principles 4, 8, 10 and 11.

15. I will make further mention of those provisions above which have direct application to the issues that go to the heart of this appeal.

Assessment

16. These proceedings were assisted by the evidence of a number of witnesses. Mention has been made of Ms Chapman, Dr Oaten, Mr McIntyre and Mr Baade. Evidence was also received from Mr Phillip Weaver, a qualified and experienced traffic engineer, and Mr David Dawson and Ms Elizabeth Vines, both of whom are qualified and experienced architects.

17. The evidence of the witnesses and the submissions of Mr McElhinney and Mr Leadbeter assisted the Court to narrow down the planning issues. Before I define the issues, it is appropriate to say a little about the opinions expressed by Ms Vines. In evidence, Ms Vines indicated that she is a part-owner of a building in the near vicinity of the land. The building is located at 27 Sydenham Road and is used, in part, as an office for her consultancy business. She further informed the Court that she was aware of the notice issued under s38(5)(b) of the Development Act 1993 by the Council in respect of the proposed development having been delivered to her office. The transcript indicates that Ms Vines had intended to, but eventually did not, lodge a representation in respect of the proposal. The evidence also shows that at or about the time she received the notice she formed an opinion to the effect that the proposal was inappropriate. Had she submitted a representation, her evidence indicates that it would have been along the lines of the contents of her statement (Exhibit R2). It is against this background that Mr McElhinney submitted that the opinions held by Ms Vines as an expert are tainted and that, in the end, I should prefer the views offered by Mr Dawson.

18. Ms Vines has been before this Court on many occasions. She has a considerable background and skills in heritage conservation. It is a practice, perhaps a speciality that has been built upon her primary qualification and skills as an architect. She speaks with considerable passion about conservation planning and architecture. However Ms Vines has, perhaps unwittingly, taken on board the task of providing expert evidence to this Court on a matter in which she cannot be said to be truly independent. The duty of an expert witness is onerous. It is a duty which has been discussed at length in many decisions of this Court (see for example Regano Industries Pty Ltd v The Director of Planning and the District Council of Meadows (1969) SAPR 89). The principal function of an expert is to give an expert opinion. For the Court to accept such an opinion it must be assured that the witness is appropriately qualified and experienced, that he or she is sufficiently familiar with all relevant facts and circumstances upon which to base the opinion, and has formed the opinion independently and free of any circumstances which may give rise to an apprehension of bias. I do not doubt Ms Vines' qualifications and experience nor whether she undertook all relevant investigations as a basis for giving evidence. However, her prior association with the matter (the details of which, to her credit, she willingly provided) as an owner of a property within 50-100 metres of the land and the fact that she formed an opinion upon receipt of the notification from the Council must diminish the value of her evidence.

19. After considering all of the relevant facts and circumstances, the evidence and submissions, the issues - when boiled down to their essence and placed in the proper planning context - are as follows:

•

The extent to which the bulk, scale, appearance and siting of the proposal is in compliance with those provisions of the Development Plan, both general and specific, which are intended to protect and enhance the amenity of the locality and, in particular, the existing dwellings immediately to the east and west of the land.

•

The extent to which the development - including but not limited to its design, appearance, form, massing, height and setback distances - is in compliance with those provisions which are intended to preserve and respect the heritage value and integrity of the Local Heritage Place at 36-38 King Street.

20. In isolating these issues I have not ignored the extent to which the development might comply with certain provisions. For example, the density (site area per dwelling) complies with Zone Principle 9 and it is a development that appears to take advantage of existing infrastructure (Council Wide Objective 1 and Principle 3(b) and Metropolitan Adelaide Principle 4). It is also a type of development that will lead to an increase in households in the area of the Council (Council Wide Objective 3). Being a two-storey development it conforms with Zone Principle 8. Although access to on-street car parking during the day may present some difficulties, I accept the evidence of Mr Weaver to the effect that the proposed development adequately complies with the provisions for car parking and vehicular access/egress and safety (Council Wide Principles 58(b) and 60). Furthermore, I am of the view that little if anything stands in the way of the proposed development providing to each dwelling a rainwater tank as provided for in Council Wide Principle 18.

21. Neither have I set-aside the matter raised by Mr McIntyre to the effect that the proposed development is contrary to the intent of the zone as expressed through Objective 1, Principle 1 and supporting text. Mr McIntyre opined that the zone "contemplates residential development on the same site and in conjunction with development for offices, warehouses and retail showrooms in the form of caretaker's or manager's residences". I have carefully considered all his evidence. At best, Mr McIntyre's opinion highlights some ambiguity in the expression of Principle 1 and the general lack of clarity about the form of residential development contemplated in the Mixed Use A Zone. However, I do not think that the other provisions of the Development Plan that he called upon to shore-up his argument provides the support necessary for this aspect of his opinion to be given particular weight. Granted, the expression of some of the zone's provisions are frustrating. However, if the purpose of the zone is to confine residential uses to a subordinate component of a more dominant non-residential use on every site it would be a simple task to have the Development Plan say so. I am reinforced in this view by observing the outcome of decisions of the Council. In very recent times it has approved the construction of two major residential developments within the Mixed Use A Zone and in the near vicinity of the land. Those developments occupy relatively large sites and are entirely residential in nature. The decisions were made, as I understand, in light of the current provisions of the Development Plan including the structure plan contained in Map KeN/1. If it was the intention of the planning authority to utilise the structure plan in any way other than as a conceptual expression of planning policy and thus view the purpose of the Mixed Use A Zone in the same way as Mr McIntyre, the outcome of those decisions would surely be very different.

22. Now to the planning issues earlier defined. For convenience I have separated them into discrete compartments. However, it is well established that the proposal must be examined against the relevant provisions of the Development Plan as a whole, the appropriate weighting being accorded to the provisions and the proper principles of planning having been duly applied.

23. In respect of the first of the planning issues, the provisions of the Development Plan that are most relevant are as follows:

COUNCIL WIDE

"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 New housing and other urban development should:

.....

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

"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."

"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."

"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;

(b) decreased daylight illumination; and

....."

"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."

24. When read together, these provisions are intended to offer an appropriate measure of protection to the various elements that form the character and establish the amenity of development in the locality. They also encourage development which is complementary to the townscape within the vicinity of the land the subject of the proposal. Of course the provisions need to be read in the planning context. In this case, the land and its immediate neighbours are in a zone which encourages commercial and industrial uses to be nearby or adjacent to residential development. Amenity expectations in these circumstances might be different from that applying to zones in which residential development is intended to be the primary or exclusive land use. That said, the text following the single zone objective (to which previous mention has been made) provides the following qualification:

"..... Activities established on sites within the zone may further develop provided they achieve compatibility with adjoining uses and minimize adverse impacts on the amenity of adjacent properties.

New buildings within the zone should be of a scale which represents existing development, in particular the scale of former and existing residential structures within the area. Development on Magill Road and Sydenham Road frontages should be of larger scale and bulk."

25. In all, it seems to me that the relevant provisions establish an appropriate planning guideline in the circumstances. In areas where mixed uses are intended including commercial and like developments and residential uses, the amenity necessary for people to live in such an area is not to be a subordinate consideration.

26. The proposal envisages on each side boundary, a wall that measures 17.5 metres long and 6.8 metres high. The walls are immediately adjacent the very narrow but well developed and highly utilised rear yards of the dwellings at No's 26 and 36 King Street (the dwellings occupied by Dr Oaten and Ms Chapman). Having had the dimensions of the proposed walls demonstrated on the view and having viewed a wall of similar (but not identical proportions) from the rear yard of No. 35 King Street, I am left in little doubt that in respect of both properties this aspect of the proposed development conflicts in a significant way with the provisions of Council Wide Principles 3(c), 27, 32(a) and 37 and the text supporting Zone Objective 1. In particular, the side walls of Dwellings 4 and 9 in no sense could be said to be in scale with the rear yard with which it abuts or with the rear of the dwellings a few metres distant. As a consequence, the walls will be an overpowering visual element that will impose an unacceptable impact on the restricted open space available to the adjoining dwellings, which impact includes an unacceptable increase in the extent of overshadowing during the winter period.

27. The conflicts are not confined to the proposed dwellings to the rear of the land. Micro-climatic impacts - in the nature of increased overshadowing and the loss of daylight - will also occur to an unacceptable extent with the siting of the western wall of proposed Dwelling 3 (16 metres long and 6.8 metres high) 600mm from the common boundary with No. 26 King Street. At present, Dr Oaten's dwelling enjoys access to some sunlight notwithstanding the relatively narrow setback of her dwelling and the existing dwelling to be demolished. This aspect of amenity is derived from the nature of the dwelling to be demolished. It is single storey with a relatively short wall around 3 metres high and a pitched roof. The arrangement allows some access to morning light - a benefit to amenity that will be virtually obliterated by the proposal.

28. In all, the siting and massing of the proposed development on or near the side boundaries of the land will impart unacceptable impacts on adjoining dwellings and their land. The impacts are not relieved to any material extent by the amended elevation (Exhibit A5). In reaching this conclusion I have not overlooked the fact that the height of the walls are generally consistent with that which exists in many developments in the locality. Nor have I ignored the potential impacts that might be created by a warehouse or similar commercial building being constructed on the land or development of a type which seeks to take advantage of existing infrastructure or similar "urban efficiency" provisions. They are relevant considerations but in my view not sufficient to override basic standards of amenity that should be afforded to residential development, no matter the circumstances in which it is situated.

29. The second issue identified earlier requires a consideration of the proposal against Council Wide Principles 46 and 56 which are expressed as follows:

"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."

"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."

30. These provisions might also be read in conjunction with Council Wide Objectives 17 and 18:

"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."

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

31. An examination of Table KeN/1 reveals that the buildings at 36-38 King Street are described as Victorian semi-detached bluestone cottages and were designated as a Local Heritage Place in accordance with the criteria set out in s23(4)(a), (b) and (d) of the Development Act 1993. It is the building alone that is listed and not the land upon which it sits.

32. Mr Dawson saw no conflict between the proposal and the relevant provisions. His reasoning appears to be as follows:

•	The Local Heritage Place listing "is related to the streetscape context".
•	The home is indistinguishable from many houses of similar construction and design in its immediate vicinity and it "does not display any characteristics, construction techniques or social themes that are unique".
•	The "overwhelming predominance of recent warehouses ..... effectively reduces any cultural significance .... in the heritage item".
•	Therefore, the importance of Principle 56 is diminished, which circumstances together with the "of the time" architectural elements, some of which appear consistent with nearby commercial buildings, are sufficient to support the proposal.

33. Much of what Mr Dawson said in his statement amounts to no more than a challenge to the listing of the property. That is of no assistance whatsoever in these proceedings. The property is a designated Local Heritage Place, listed in accordance with the criteria mentioned earlier. That is the starting point, whether or not an expert may disagree with its importance as a heritage item or for that matter the basis upon which it is listed. I acknowledge that in respect of the Local Heritage Place, the listing criteria may create some ambiguity as to its intrinsic or most significant aspect of its heritage value. It is often helpful to isolate such an attribute if it exists. However, nothing was put to the Court which would support Mr Dawson's assertion that its streetscape context might be given primacy in the assessment of the proposed development.

34. In my view, there is little if any reason to diminish the role that Principle 56 and related provisions play in these proceedings. It is a reasonably specific guideline. Unlike the provisions for the control of built form adjacent heritage places in the Development Plan for some other Councils, the provisions in the Development Plan for the City of Norwood, Payneham and St Peters are a little more accommodating. For example, they do not seek a building adjoining or nearby a Local Heritage Place to mimic or replicate its architecture. To the contrary, if it is read in conjunction with Council Wide Objective 18, a building of modern architectural vernacular could not be ruled out.

35. However, planning guidelines of this nature do not in themselves provide the license to diminish the provisions of Principle 56. I acknowledge that the proposed building height is similar to some of the buildings in the locality. That, I think, is where compliance with the relevant aspects of Principle 56 ends. In no sense can it be said that the proposed buildings compliment the form massing or other dominant design elements of the heritage place nor does it adopt in any - even subtle - way the roof pitch of the adjoining buildings. These conflicts are not assisted by the street setback to building height relationship and the dominance of the double garage associated with Dwelling 2. In all, these aspects of the proposed development are of a type and magnitude that bring it into conflict with the intent and purpose of Council Wide Principles 46 and 56 to an unacceptable extent.

Conclusion

36. Having considered all that has been put before me and all relevant provisions of the Development Plan I have reached the conclusion that the decision of the Council to refuse provisional development plan consent was correct.

37. I have given consideration to Mr McElhinney's closing submissions, the effect of which was to invite me to identify any shortcomings of the proposal and offer the opportunity for design changes to be considered and if appropriate amendments being tendered to the Court. This is not an unusual course to take. However, I do not consider it appropriate in the circumstances. It seems to me that the amendments that are necessary to render the proposal in adequate compliance with the relevant provisions of the Development Plan are likely to be substantial and potentially of a type that would constitute a fresh proposal.

38. The appeal is dismissed. There will be an order accordingly.