Girardi v City of Burnside No ERD-03-153 [2003] SAERDC 89 (28 August 2003)

Last Updated: 31 August 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Mosel

Hearing

12/08/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for dwelling additions - Residential Zone R450 Zone - refused by the Council - bulk, scale and siting of the garage the principle planning issue - character of the locality established by the spatial arrangement of buildings an important consideration - proposal does not harmonise with the character to an adequate extent - setback and siting of the garage generally in conflict with relevant Australian Standards for sight distance - pedestrian safety put at risk - appeal dismissed - decisions of the Council confirmed.

• Development Act 1993 ;
• Environmental, Resource & Development Court At 1993 , referred to.

Representation

Appellants: DANIEL AND MARGARET GIRARDI
In Person

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

ERD-03-153

Judgment No. [2003] SAERDC 89

28 August 2003

DANIEL & MARGARET GIRARDI

v

CITY OF BURNSIDE

(ERDC No 153 of 2003)

[2003] SAERDC 89

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By Development Application 180/00964/02/C1, Mr and Mrs Girardi, through their agent Thomas Georgia Design, applied to the City of Burnside ("the Council") for provisional development plan consent to enlarge the existing dwelling at 450 Greenhill Road, Linden Park ("the land"). The Council treated the proposal as a Category 1 Development. In due course it refused to issue the consent sought. In its notification to Mr and Mrs Girardi dated 2 April 2003, the Council provided the following reason for its decision.

"The proposal fails to meet the requirements for the garage setbacks [sic] to secondary street frontages [sic] as outlined in Principle of Development Control 30 of the Council Wide Provisions."

2. Mr and Mrs Girardi appealed the decision. When the matter came to hearing Mr and Mrs Girardi appeared in person and Mr Hilditch appeared for the Council. The Court was assisted by a view of the land and the evidence of Mr Russo (building designer), Mr Young (traffic engineer) and Mr Rolfe (town planner).

3. The land is situated on the western side of Laurel Avenue at its junction with Greenhill Road. It is developed with a single storey tudor style dwelling, a masonary outbuilding near the rear boundary and a corrugated iron shed (about 2.0m from the Laurel Avenue boundary).

4. The dwelling additions would be quite large and would comprise a kitchen/family/meals area, bedroom, bathroom, laundry and double garage. The masonary building and corrugated iron shed would be removed to make way for the additions as would the existing fence in Laurel Avenue (to be replaced by a 1800mm high masonary screen wall).

5. In its original form, the double garage (6.0m wide) would be positioned on the Laurel Avenue boundary about 1.2m away from the southern boundary of the land. However, at the commencement of the hearing, Mr Girardi tendered an amended plan (Exhibit A1) showing the garage setback 1.0m from Laurel Avenue. This amendment gives rise to minor design changes to other spaces within the proposed additions none of which alters the essential nature of the proposal. Exhibit A1 is attached.

6. It became evident during the early stages of the hearing that Mr Russo, who drew the plans, had not fully considered the effect that the slight slope of the ground level away from Laurel Avenue would have on the finished floor levels of the additions. After the parties conferred it was agreed that the finished floor level of the garage would be RL99.91 and the finished floor level of the remainder of the addition would be RL99.78. As a consequence Mr Russo indicated that, since the ceiling height of all of the additions is intended to match the existing dwelling, the floor to ceiling height of the garage would reduce from about 3.2m to about 2.8m. Thus, the Laurel Avenue elevation on Exhibit A1 does not accurately depict the height of the garage relative to the wall heights of the other parts of the proposal and the existing house.

7. I accept the extent and description of the locality as put to the Court by Mr Rolfe. It is contained in Figure 1 in Exhibit R2. The locality is residential in character. Its amenity is pleasant notwithstanding the high volumes of traffic along Greenhill Road. Dwellings are setback generous distances (6.0-8.0m or more). The attractiveness of the locality is derived partly from well maintained gardens, uniform front and side setbacks and a wide grassed verge. There are four corner allotments in the locality. The solid building forms on each of these allotments, are generally setback 3.0m or more from the secondary street boundary. The exception is the land on which the development is proposed. In that instance a corrugated iron shed is setback about 2.0m and is largely concealed behind a 1.8m fence.

8. Mr and Mrs Girardi tendered several photographs of properties situated in the suburbs of Linden Park and Tusmore (Exhibit A2). Invariably the photographs depict corner sites with garages and sheds on or near the secondary street boundary and in circumstances that, on the face of it, are similar to those in these proceedings. I acknowledge their reasons for bringing the presence of these buildings to the Court's attention and their concern and frustration that inevitably arise in such circumstances. However, the properties depicted in Exhibit A2 bear no physical relationship with the land or its locality and cannot be given any particular weight in the assessment of the proposal before the Court.

9. The land is depicted on Map Bur/7 in the relevant version (20 June 2002) of the Development Plan for the City of Burnside ("the Plan"). It is situated within the Residential R450 Zone. The sole objective of the zone is expressed as follows:

"A Zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact."

10. The emphasis I have given to the objective underscores one of two central issues in the dispute. The location of the garage in close proximity to Laurel Avenue gives rise to its appropriateness when assessed against Residential R450 Zone Principle 6(a), the quantitative provisions of Principles 26(e)(ii) and 30(a) and the qualitative provisions of Council Wide Objective 5 and Principles 23, 29(c), 121 and 138 and Metropolitan Adelaide Objective 42 and Principle 9. These provisions are expressed in the following terms:

Residental R450 Zone

"Principle 6 Any development comprising a dwelling or dwellings in any configuration (including any carport or garage but not including any verandah, pergola, or other garden structure) should:

(a) have a bulk and floor space appropriate to the character and amenity of the locality in which the land is situated;

...."

Council Wide

"Principle 26: The setback of a building from the boundary of a road, or the boundary of any land shown as being required for road widening on a plan deposited under the provisions of the Metropolitan Road Widening Plant Act, 1972, should:

....

(e) not in general be less than:

....

(ii) six metres in the Residential R450 and Residential R550 Zones

...."

"Principle 30: Where garages and carports are appropriately located within close proximity to street boundaries such as on corner allotments:

(a) the set-back distance of the structure from the street boundary should be not less than one metre for a typical single garage or carport of up to four metres in width and be increased commensurate with the width and scale of larger structures to minimize their impact on the relevant streetscape;

...."

"Objective 5: No adverse effect on the amenity or the predominant character of the area in which development is undertaken."

"Principle 23: The space between buildings in residential areas as viewed from the street, should be compatible with the predominant character of the streetscapes to which the building relates."

"Principle 29: Dwellings and buildings associated with the development of dwellings should be designed and constructed in a manner and of materials which will positively contribute to any streetscape to which the development relates by the avoidance of:

....

(c) garages or carports extending forward from the front of the dwelling in a manner which dominates or detracts from the appearance of the development;

...."

"Principle 121: Each building should be located and designed in respect of its:

(a) height;

(b) size;

(c) scale;

(d) colour;

(e) form;

(f) siting;

(g) architectural style; and

(h) materials of construction,

to harmonize with conditions desired as indicated by the objectives or principles of development control for the relevant zone, or otherwise the predominate character of other buildings in the locality."

"Principle 138: Building development on a site with frontage to a road, where that development is:

(a) large in bulk or height in comparison with other buildings with frontage to the same road;

(b) to have a highly reflective or brightly coloured external surface; and

(c) not well screened from view by vegetation, land form or other buildings,

should be set-back from the road frontage further than other nearby buildings with frontage to the same road, so as not to minimise the visual prominence of the building when developed."

Metropolitan Adelaide

"Objective 42: 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 relate to adjacent buildings.

...."

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

11. Although not identified in the Council's decision notification, there is a second issue in dispute. The Council contends that the position of the garage, even in its amended form, does not adequately address Council Wide Principle 56. This provision is expressed in the following terms:

"Principle 56: Development should provide safe and convenient access and egress for all vehicles and pedestrians, as may be expected to be associated with that development."

12. When taken together, the provisions directed at the bulk, scale, siting and appearance of buildings are intended to ensure development is in sufficient harmony with the prevailing character of the locality and that sufficient sight distances are available to ensure, to a reasonable extent, the safety of pedestrians. Setback distances from road and side boundaries and the size of a building and its aesthetic quality all play a part in reaching these goals. Of course, when assessing the proposal against all relevant provisions, it is appropriate to balance the planning interest against the needs of Mr and Mrs Girardi, Papageorgiou v City of Campbelltown [1996] No OE369.

13. Having considered all relevant circumstances and the evidence put to the Court, I have concluded that the proposal in its present form does not adequately conform with the relevant provisions of the Plan cited above. Overall the garage would sit as an uncomfortable element in the streetscape and would, in particular, conflict to an unacceptable extent with Council Wide Objective 5 and Principles 23, 30, 121 and 138(a) and Metropolitan Principle 9. In the absence of other factors the proposal would have much to commend it. It seems that considerable effort has been made to blend the new construction with the original dwelling and to design it for the long term needs of Mr and Mrs Girardi. However, the setback of the garage from the Laurel Street boundary of 1.0m would not be sufficient to reduce its bulk and scale to the extent necessary for it to harmonise with the spatial arrangements of buildings in the locality. It would be a dominant element in a streetscape and locality that is characterised by generous setback distances afforded to solid building forms.

14. These conflicts are not assisted by the sight distances that would result from the proposed location of the garage. Safety is a fundamental goal of town planning and is a consideration that finds expression in Council Wide Principle 56. The evidence of Mr Young, a qualified and very experienced traffic engineer, indicates that in its present form the proposed location of the garage poses an unacceptable risk to pedestrians as a consequence of vehicles reversing from it. There are, no doubt, many instances throughout Linden Park where the Australian Standard 2890.1 - 1993, to which Mr Young made reference, has not been applied to garages near a secondary street boundary. There are no doubt conflicts between these standards and the access arrangements that often occur with high fences and side gates. However, the presence of poorly designed developments should not be called in support of a similar proposal particularly when pedestrian safety is at stake. It is possible that Mr Young took an overly cautious view about the standards for sight distance that should apply. However, he is a very experienced traffic engineer and nothing was put to me that would seriously challenge Mr Young's evidence. Accordingly, I find that the proposal is in substantial conflict with Principle 56.

14. During the hearing I canvassed with Mr Girardi the possibility of increasing the setback of the garage to a distance closer to 2.0m from Laurel Street. It seemed to me that there is adequate opportunity to do so without compromising, in any serious way the design integrity of the proposal or unreasonably limiting the space available for dwelling additions. In doing so I was mindful of the evidence of Mr Rolfe who opined that in the event of such an amendment, the changes to the private open space would be tolerable (or otherwise compensated for elsewhere on the land) and the ways in which the proposal could be amended to meet a reasonable level of safety suggested by Mr Young. Mr Girardi declined the opportunity to revise the proposal in the event that I reached the conclusion that I now have.

15. For these reasons the appeal is dismissed and the decision of the Council confirmed.

16. There will be an order accordingly.

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