Cosro Pty Ltd v City of Holdfast Bay No ERD-03-133, ERD-03-134 [2003] SAERDC 79 (5 August 2003)

Last Updated: 10 August 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

02/07/2003 to 03/07/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development applications to construct two two-storey dwellings - Residential (Foreshore) Zone - zone provisions anticipate higher density development of up to three storeys - relevance of Council Wide provisions - zone provisions do not obviate need for new development to achieve appropriate design relationship with adjoining development - egress arrangements from one dwelling inappropriate - proposal in conflict with number of relevant development plan provisions - appeal dismissed and decision of the Council confirmed.

• Development Court Act 1993 , referred to.
• Toyias and Others v Alan Sheppard Homes Pty Ltd and Others [1997] SASC 6160; (1997) 69 SASR 42, considered.

Representation

Appellant: COSRO PTY LTD
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

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

ERD-03-133, ERD-03-134

Judgment No. [2003] SAERDC 79

5 August 2003

COSRO PTY LTD

v

CITY OF HOLDFAST BAY

(ERDC Nos. 133 & 134 of 2003)

[2003] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. These appeals arise out of decisions by the City of Holdfast Bay ("the Council") to refuse two applications by Cosro Pty Ltd ("the Appellant"), which applications sought consent for the construction of two two-storey detached dwellings on land at 3 Lymington Street, Glenelg. The Appellant's applications were made respectively on 23 December 2002 and 29 January 2003. Both were refused by the Council on 25 March 2003. The stated reason for refusal in both instances was that the applications were "contrary to the provisions of the City of Holdfast Bay Development Plan".

2. The Appellant, being aggrieved by the decision of the Council, appealed to this Court against it. A conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act, 1993 did not produce a compromise or settlement and the matter then proceeded to a hearing, at which the Appellant was represented by Mr J Botten, of counsel, and the Council by Mr J Hilditch, of counsel. The Court, in the company of the parties, conducted a view of the subject land and its locality, received a number of exhibits, and heard sworn evidence from Mr G Burns, a qualified and experienced town planning consultant, Mr H Bechervaise, a qualified and experienced architect and town planner, Mr A Humby, a qualified town planner in the employ of the respondent Council, and Mr F Siow, a qualified and experienced traffic engineer. I have taken all the expert evidence into account.

The Subject Land and Locality

3. The subject land has a frontage to Lymington Street of 15.24m and a depth of 45.64m, producing a total area of some 695.55m2. The rear or northern end of the subject land also has a frontage to Percival Street of 6.25m. The land is more particularly described as Allotment 15 in DP 443, Certificate of Title 5712/619. In April 2003, the City of Holdfast Bay approved a plan of division over the subject land which would result in the creation of 2 allotments - Allotment 701, with a frontage to Lymington Street, would have an area of 424m2, and Allotment 700, having a frontage to the southern end of Pervical Street, would have an area of 273m2. The Court was advised that separate titles had not yet been issued for the new allotments.

4. The land is vacant, but was previously occupied by an older style dwelling. This dwelling was demolished earlier this year.

5. To the immediate east of the subject land, at 1 Lymington Street, is a pair of single-storey semi-detached dwellings which appear to have been constructed relatively recently. The westernmost of these dwellings extends to the eastern boundary of the subject land over a length of some 9.0m. Both semi-detached dwellings are set back 2.4m from Lymington Street. Vehicular access to each is obtained by way of a shared entrance from Percival Street into a carport/double garage.

6. To the immediate west of the subject land, at 5 Lymington Street, is a single- storey villa style residence, set back 4.67m from the road. A double length, open- sided carport attached to the eastern side of the dwelling extends to the common boundary with the subject land, as does a shed located in the rear yard of the dwelling, behind the carport.

7. With the exception of a church located on the western side of Percival Street, facing Moseley Street, a medical centre on Moseley Street and a two-storey residential flat building on College Street presently utilised as consulting rooms, the locality is characterised by residential development. Lymington Street contains both single- storey semi-detached dwellings and single-storey detached dwellings. The western side of Percival Street comprises predominantly single-storey row dwellings and detached dwellings. One two-storey residential flat building is located midway between College Street and the subject land. The eastern side of Percival Street in the vicinity of the subject land is occupied by the rear of allotments facing Moseley Street. There are, however, a single-storey detached dwelling and single-storey row dwellings towards College Street.

The Proposal

8. The proposal entails the construction of two two-storey detached dwellings, a larger of these having a frontage to Lymington Street and the other having a frontage to Percival Street.

9. It is proposed that the dwelling to front Lymington Street be set back 3.0m from its street frontage, this increasing to 6.44m for the double garage. It would be set back 1.09m from the western side boundary with the double garage being built to the eastern boundary, butting up to the face brick wall of the adjacent semi-detached dwelling.

10. Some 112m2 of private open space would be provided to the rear of the dwelling.

11. The finished height of the dwelling, measured to the top of the parapet, would be 8.9m. The upper floor level would be set back 2.29m from the western side boundary and 2.52m from the eastern side boundary. Proposed materials are granite for the facade, rendered and texture painted side and rear walls and 'Kliplok' or similar zincalume roof sheeting. As a consequence of the parapet incorporated in the design, the roof would not be visible from the street.

12. The dwelling to front Percival Street would be two-storeys high, but smaller in scale as a consequence of its smaller site area of 273m2. The total building height would be 6.9m.

13. This dwelling would be set back 1.0m from the western boundary, with a double garage abutting the eastern boundary in line with the adjacent carport, also built to that boundary.

14. Approximately 60.88m2 of private open space would be provided for this dwelling.

15. Undercover parking for two vehicles would be provided in a double garage, with sufficient room for the parking of two visitors' vehicles in the driveway behind this.

16. The upper floor level would be set back 2.15m from the eastern side boundary, and 2.5m from the western side boundary. Proposed materials include granite columns, rendered and texture painted walls and 'Kliplok' or zincalume roof sheeting, again concealed behind a parapet.

Development Plan Provisions

17. The subject land is located within Policy Area 2 of the Residential (Foreshore) Zone as depicted on Maps HoB/5 and HoB/13 in the Development Plan for the City of Holdfast Bay dated 19 December 2002. The relevant Development Plan provisions for that zone are as follows:

Residential (Foreshore) Zone

"Objective 1: Accommodation of detached and semi-detached dwellings, with row dwellings, multiple dwellings and residential flat buildings of low, medium and high densities in suitable areas."

"Objective 3: Accommodation in Policy Area 2 of a mix of residential development, including detached dwellings, semi-detached dwellings, row dwellings and residential flat buildings to a maximum height of three-storeys above natural surface level, excluding lift service levels."

"Objective 8: Protection of the amenity of land in the vicinity of development."

"Principle 2: In Policy Area 2:

(a) no buildings should have more than three-storeys above natural surface level, excluding lift service levels; and

(b) the average site area per dwelling in residential development should not be less than 160 square metres."

"Principle 9: Where development of land for dwellings or tourist accommodation occurs at a density higher than that which exists, such development should take place on a site formed from two or more existing allotments."

"Principle 13: Service yards, car parking areas and facilities, service ducting and plant should be designed and located to ensure that the appearance of buildings and land viewed from all abutting roads is attractive."

18. To the immediate east of the subject land, extending through to Moseley Street, is the Residential (Central Glenelg) Zone, the Development Plan provisions for which zone have some relevance to assessment of the subject proposal, as do many of the Council Wide provisions. I will not set out in full all the Development Plan provisions which I have taken into account. They are set out in the statements of the planners, and a number were discussed in evidence.

19. Relevant Council Wide objectives and principles include Objectives 14, 23, 30, 32, 33, 34 and 83 and Principles 7, 25, 35, 37, 48, 49, 50, 51, 52, 57, 58, 59, 60, 61, 67, 69, 70, 71, 73, 74, 189, 191, 192, 199 and 200.

The Evidence

20. The evidence of Mr Humby was that the proposal satisfied a number of relevant quantitative provisions of the Development Plan, these being density, open space, site coverage, rear boundary setbacks and car parking provision. In his view, it also satisfied those provisions which addressed the issues of privacy and overshadowing.

21. Those aspects of the proposal which Mr Humby considered unsatisfactory, and in conflict with the relevant provisions of the Development Plan, were:

• vehicular manoeuvrability and egress from the site onto Percival Street;

• front and side setbacks;

• the bulk and scale of the dwellings and the resultant impacts on the locality, and adjoining properties;

• the appearance of each dwelling and the resultant impact on the locality; and

• minimal provision for landscaping.

22. On the first of these concerns, Mr Humby, while deferring to the expert opinion of Mr Siow, was of the view that the narrowness of Percival Street, the proximity of on-street carparking to the subject land and the need for vehicles to reverse from that land into the end of Percival Street would result in the need for a multi-point turning manoeuvre whenever leaving the garaging or vehicular parking area for the dwelling facing Percival Street, a situation which brought the proposal into conflict with Council Wide Objective 23 and Principles 35 and 37, which are in the following terms:

"Objective 23: The establishment of sites with access only via an existing rear service lane or via a newly created public thoroughfare should be limited to circumstances where such an access road has or, for the frontage of the subject site, will create, the following characteristics:

(a) is made public; and

(b) is a through-road; or

(c) has adequate turn-around capability within the road reserve; or

(d) has a road length of not greater than 60 metres.

In the case of single direction thoroughfares (ie through roads), the following design standards should apply:

(a) a minimum road reserve width of six metres;

(b) a minimum road pavement width of 3.5 metres;

(c) the provision of passing bays at intervals not greater than 80 metres;

(d) the provision of slow points to achieve a maximum design speed of 20 kilometres per hour; and

(e) the provision of verge parking at a minimum rate of one space of each two allotment frontages to the thoroughfare.

In the case of dual direction thoroughfares (including through roads and non-through roads), the following design standards should apply:

(a) a minimum road reserve width of eight metres;

(b) a minimum road pavement width of 5.5 metres;

(c) a minimum footpath width on one side of 2.5 metres; and

(d) the provision of slow points to achieve a maximum design speed of 20 kilometres per hour.

In the case of non-through-roads greater than 60 metres in length, a vehicle turn-around should be provided within the road reserve with a minimum turning path radius of 3.5 metres and a stacking area of six metres."

"Principle 35: Parking areas should conform to the following access and design principles:

(a) development should provide safe and convenient access for vehicles, cyclists, pedestrians, the disabled, service, emergency and public utility vehicles;

(b) access points onto public roads should be located and designed in such a way as to minimize traffic hazards, queuing on public roads and intrusion into adjacent residential areas;

(c) the number, location and design of access points onto the arterial roads shown on Map HoB/1 (Overlay1) should be such as to minimize traffic hazards, queuing on the roads, right turn movements and interference with the function of intersections, junctions and traffic control devices;

(d) car parking areas should be located and designed in such a way as to ensure safe and convenient pedestrian access from vehicles to facilities, safe and convenient traffic circulation, minimal conflict between customer and service vehicles and should include adequate provision for manoeuvring into and out of parking bays;

(e) the layout of all parking areas should be designed so as to obviate the necessity for vehicles to back onto public roads;

(f) individual parking areas should, wherever possible, be located and designed so that:

(i) vehicular movement between them does not require the use of public roads; and

(ii) the number of access points is minimised;

(g) opportunities for permanent shared use of car parking between developments should be explored so as to reduce the total extent of car parking areas;and

(h) landscaping should be provided and maintained in order to screen, shade and enhance the appearance of car parking area from any public place."

"Principle 37: A car parking space should be individually accessible from a driveway or aisle:

(a) of adequate width at the junction of that driveway or aisle with a road, having regard to the function and design of that road: and

(b) containing a useable area for manoeuvring adjoining that car parking space, having regard to the angle of that parking space."

23. In Mr Humby's view, the development, in order to satisfy those provisions, needed to incorporate a turning area on site to allow vehicles to leave the land in a forward direction onto Percival Street.

24. With reference to proposed front and side setbacks, Mr Humby's view was that the proposal failed to satisfy Council Wide Principle 74 in respect of the side boundary setbacks of both dwellings. Principle 74 requires walls higher than 3.0m to be set back at least 2.5m from side and rear boundaries and walls less than 3.0m in height to be set back at least 1.5m from side and rear boundaries.

25. Mr Humby acknowledged that the Residential (Foreshore) Zone provisions anticipated developments of up to three-storeys in height in Policy Area 2, and that the zone provisions provided little guidance as to the design, appearance and bulk of new residential developments. That being the case, he said, it was necessary to have regard to the more general Council Wide provisions of the Development Plan in order to ensure that Zone Objective 8 was satisfied, that objective being the "Protection of the amenity of land in the vicinity of development". Council Wide Principle 58, for example, sought to reduce the bulk of large residential buildings by measures such as variations in roof angles and wall heights, incorporation of eaves, verandahs and balconies, and incorporation of second or upper storeys in the roofline. More generally, Council Wide Principle 49 required new residential development not to impair the character or amenity of the locality in which it is to be built.

26. Both proposed dwellings were, in Mr Humby's view, large and bulky structures when viewed from the street, making few, if any, design concessions to their immediate neighbours or to development within the locality. That facing Percival Street would have a maximum wall height of 7.2m above natural ground level, and while there was some degree of articulation provided by the front porch and several small balconies, the dominant height, bulk and scale of the dwelling did not take into consideration sufficiently the existing built form character of the locality, which was predominantly single-storey detached, semi-detached or row dwellings with gabled and hipped roofs.

27. Similarly, the dwelling to face Lymington Street would have a maximum wall height 9.1m above natural ground level and, being neither sufficiently articulated nor adequately set back from side boundaries, would again have a bulk, height and scale which was out of keeping with the existing built form character of the locality.

28. With reference to landscaping, Mr Humby's view was that, as a consequence of the proposal failing to meet the 6.0m front setback sought by Council Wide Principle 199, the areas available for this purpose would be insufficient to allow landscaping capable of minimising the visual bulk of the proposed development when viewed from either Lymington or Percival Street, that bulk being emphasised by the minimal setback from the street.

29. Finally, Mr Humby was of the view that the design of each dwelling bore little, if any relationship to the prevailing forms of residential development in the locality, and would detract from the established character and amenity of that locality.

30. Taken together, these aspects of the proposal brought it into conflict with a number of relevant provisions of the Development Plan, including Objectives 23 and 83 and Principles 49, 58, 67, 69, 73, 74, 189, 191, 199 and 200.

31. Mr Bechervaise reached similar conclusions, summarising his views as follows:

"When assessed against the provisions of the Development Plan, the plans submitted can be found to be deficient in 2 primary areas:

1. Intensity and Scale

The development is of an intensity and scale and therefore bulk and height which is not characteristic of the area, with 9m height and flat roof, and double garaging a dominating aspect of the street frontages. The usability and provision of landscaping to soften the visual impact is not adequate in terms of the existing character of the area.

2. Front and Side Setbacks

The front setback indicated is 3m to the balcony on Lymington Street, 2.5m to the porch on Percival Street, and the side setbacks of zero and 1m - 1.09m do not comply with Development Plan requirements.

3. In Summary

The scale of the building, setbacks, and the form of the development proposed would be inappropriate for the area in terms of its existing character and scale."

32. The evidence of Mr Siow was that the proposal did not satisfy the requirements of Council Wide Principles 17(f), 25(f), and 35(a) and (c). Those principles read as follows:

"Principle 17: When land is divided:

....

(f) each allotment resulting from the division should have safe and convenient access to the carriageway of an existing or proposed road or thoroughfare;

...."

"Principle 25: The layout and design of residential development should ensure:

....

(f) safe and convenient access from an existing or proposed road to each allotment.

...."

"Principle 35: Parking areas should conform to the following access and design principles:

(a) development should provide safe and convenient access to vehicles, cyclists, pedestrians, the disabled, service, emergency and public utility vehicles;

....

(e) the layout of all parking areas should be designed so as to obviate the necessity for vehicles to back onto public roads;

...."

33. A vehicle exiting the proposed residence fronting Percival Street, said Mr Siow, would be required to execute a four point turn (three if no cars were parked in the turning area) to depart in a forward direction via Percival Street, or alternatively reverse for the whole length of that street. In Mr Siow's view, it would be necessary to provide a turning area on site, so that a car was able to leave the land in a forward direction, if the above provisions were to be satisfied.

34. Mr Burns, in evidence, conceded that, if cars were parked at the southern end of Percival Street, it would be necessary for a vehicle leaving the dwelling facing Percival Street to execute a four point turn in order to drive north along Percival Street. He was of the view, however, that this arrangement was acceptable given the low number of traffic movements at the southern end of Percival Street.

35. With reference to the form of development proposed, Mr Burns concluded that the proposal was consistent in land use terms with the type of development envisaged for the zone and Policy Area, and that both dwellings were of a height and density considerably lower than that which could be expected in Policy Area 2. The locality was one in which higher density residential development was encouraged, but the proposed dwellings nonetheless established an appropriate design relationship with adjoining dwellings in terms of height, setback, bulk and appearance, having regard to the absence of any consistency or uniformity in the character of existing residential development in the locality.

Assessment

36. Mr Botten submitted that the Council, in relying on the more general provisions of the Development Plan to refuse the subject proposal, had erred in failing to recognise the extent to which the specific provisions for the Residential (Foreshore) Zone and Policy Area 2 had established an overall intent and desired character for that zone which required the more general Development Plan provisions to be read down. The mix of residential uses allowed in the zone, and the allowable maximum height of three-storeys, inevitably would result in impacts on the existing low density character of the locality, and were the Council Wide provisions to be applied in such a way as to place primacy on the protection of the locality's existing character, it would render sterile the clear intent and purpose of the zone and Policy Area 2. The Development Plan, in his submission, drew a clear distinction between those areas within which existing predominant built form character was to be protected, and those within which significant change was envisaged. This was given expression in the otherwise contradictory provisions of Council Wide Objectives 33 and 34, the former seeking "preservation of existing attractive environmental conditions in stable, well established areas where change is not warranted to protect the amenity enjoyed by existing residents....", the latter seeking "realisation of the maximum development potential of individual sites consistent with the other objectives, and the objectives for the applicable zones."

37. A comparison of the Residential (Foreshore) Zone provisions with those for the Residential (Central Glenelg) Zone, for example, revealed that, whereas the latter sought "conservation of a predominant character throughout the zone established by existing detached dwellings" (Objective 2), the former, at least in respect of Policy Area 2, made no reference to existing or predominant character.

38. On the basis of such a comparison, Mr Botten submitted, it had to be concluded that Policy Area 2 was an area within which reasonably high-density development and a mix of residential development types was contemplated. This conclusion was reinforced by the fact the land lay within the Glenelg Activity Centre as depicted on Figure HoB/3 in the Development Plan, referred to in Council Wide Objectives 3 and 5 as being a "strong and vibrant multi-purpose centre" and in Council Wide Objective 31 as accommodating "higher density residential development".

39. The Development Plan provisions for the Residential (Foreshore) Zone stood in sharp contrast to those for most other residential zones in the City of Holdfast Bay because of the absence from the former of references to the maintenance of existing character. When the overall intent and purpose of the zone was clearly directed towards the accommodation of a range of dwelling types at densities and heights considerably greater than those presently prevalent, the Council Wide provisions of the Development Plan should not be applied in such a way as to defeat the clear intent of the zone and Policy Area.

40. With reference to the evidence of Mr Siow, Mr Botten submitted that the evidence did not suggest the manoeuvre required to exit from the proposed Percival Street dwelling was unsafe, merely inconvenient. Regard should be had to the fact that Council had approved the proposed division of the subject land, thereby inferring it was satisfied that access to the allotment on Percival Street could be obtained in a safe and convenient manner.

41. Mr Hilditch submitted that an assessment of existing conditions in the locality and the character and amenity of that locality were an important element in the assessment of a proposal representing the first intrusion of a development different to that already existing there. In support of his submission he made reference to the decision of Debelle J in Toyias and Others v Alan Sheppard Homes Pty Ltd and Others (1997) [1997] SASC 6160; 69 SASR 42, in which His Honour observed, at 51, that

"When considering an application for a form of residential building which is not identical to that which already exist in a residential area, it will be necessary to assess whether the locality is suitable for the proposed building. That assessment will of necessity involve an assessment of the character and amenity of the locality, an assessment of the nature, design and effects in planning terms of the proposed development, and an assessment of the impact of the proposed development on the character and amenity of the locality ... In the ultimate result, an exercise in planning judgement is required. In making that planning judgment, the fact that the proposed development will constitute a first intrusion of that type of development into the locality is not necessarily a barrier to development consent."

42. Mr Hilditch drew my attention to Objective 8 and Principle 9 for the Residential (Foreshore) Zone, which provisions apply in all Policy Areas. Objective 8 seeks the "protection of the amenity of land in the vicinity of development". Principle 9 is more specific:

"Principle 9: Where development of land for dwellings or tourist accommodation occurs at a density higher than that which exists, such development should take place on a site formed from two or more existing allotments."

43. Provisions of the Development Plan which, in Mr Hilditch's submission, underscored the design and siting deficiencies of the proposal included Council Wide Objectives 14, 30 and 32 and Principles 2, 49, 50, 52, 59, 60, 61, 69, 73, 74, 199 and 200. Those aspects of the proposal of which Mr Humby and Mr Bechervaise had been critical, inasmuch as they conflicted with one or more of the above Development Plan provisions, were symptomatic, Mr Hilditch submitted, of overdevelopment of the site.

44. Toyias is authority for the proposition that the absence of a particular form of development from a locality is not, of itself, a barrier to the approval of that form of development where the latter is contemplated by the relevant provisions of the Development Plan. Accordingly, the fact that the proposed development represents the first two-storey residential development in that section of Lymington Street between Moseley Street and St John's Row is not a basis upon which it should be rejected, having regard to the objectives for Policy Area 2, which anticipate development of up to three-storeys. It is clear that the Development Plan is seeking to encourage higher density residential development within Policy Area 2, and it is inevitable that the character of various localities within that Policy Area will change over time as a consequence.

45. That said, I do not read the Development Plan Provisions for Policy Area 2 as providing carte blanche for any residential development which satisfies the height and average site area requirements set out in Zone Principle 2. It is still necessary to assess proposed developments against other relevant zone provisions, in particular Objective 8 and Principle 9, and against other relevant Council Wide provisions, the latter assessment being made in the context of the intent, evident in the zoning scheme, to encourage a diversity of residential development forms of up to three- storeys within Policy Area 2, on relatively small sites.

46. The proposed development seeks to place large dwellings on relatively small sites. While the proposal satisfies many of the relevant quantitative provisions of the Development Plan, it does not meet the side and front setbacks stipulated.

47. This, in combination with the minimal articulation and parapet-enclosed roof form evident in the design of the two dwellings, would produce a bulk and mass which would relate poorly to the more articulated and lower-scaled dwellings adjoining, and allow very limited opportunities for landscaping of a depth and scale which would soften the appearance of the proposed dwellings when viewed from the street.

48. These features of the proposal, taken together with the visual dominance of garaging which will result from the substantial proportion of each frontage devoted to this purpose, and the vehicle manoeuvring difficulties identified by Mr Siow in respect of the dwellings fronting Percival Street, bring it into conflict with a number of relevant provisions of the Development Plan, in particular Zone Objective 8 and Council Wide Objectives 23 and 83 and Principles 49, 52, 58, 67, 73, 74, 189, 191, 199 and 200. That being the case I have concluded that the subject proposal, in its present form, should not be approved. In so concluding, I do not wish to be taken as saying that the subject land is incapable of accommodating two dwellings. The zoning scheme clearly anticipates higher density development. The latter, however, must occur in sympathy with adjoining and nearby development, and in a manner which provides satisfactory access to and egress from each dwelling.

49. One final matter requires some comment. In its reasons for refusal, the Council stated only that the proposals, the subject of these proceedings, were "contrary to the provisions of the City of Holdfast Bay Development Plan". Section 40(1) of the Development Act 1993 requires planning authorities, including Councils, to provide reasons for any refusal issued in respect of a Development Application. That obligation, in my view, is not satisfied by the statement referred to above. This Court has consistently held that reasons for refusal should refer to those provisions of the relevant Development Plan central to the planning authority's decision to refuse.

50. There will be an order dismissing these appeals and confirming the decision of the respondent Council.