Leipus v City of Unley No ERD-02-422 [2003] SAERDC 9 (27 February 2003)

Last Updated: 2 March 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

16/12/2002 to 17/12/2002.

Representation

Appellant: PETER LEIPUS
Counsel: MR S HENRY - Solicitors: STUART MAIN & ASSOCIATES

Respondent: CITY OF UNLEY
Counsel: MS S BLENCOWE - Solicitors: SYBELLA BLENCOWE

ERD-02-422

Judgment No. [2003] SAERDC 9

27 February 2003

PETER LEIPUS

v

CITY OF UNLEY

(ERDC No. 422 OF 2002)

[2003] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against a decision of the City of Unley ("the Council"), made on 8 April 2002, to refuse Provisional Development Plan Consent for an application by Peter Leipus ("the Appellant"), which application sought consent for the demolition of an existing dwelling and the construction of two semi-detached dwellings on land at 10 Kneebone Street, Goodwood.

2. The appellant, being aggrieved by the decision of the Council, appealed to this Court against it. No compromise was achieved at a conference conducted pursuant to Section 16 of the Environment, Resources and Development Court Act 1993, and the matter then proceeded to a hearing, at which the appellant was represented by Mr S Henry, of counsel, and the Council by Ms S Blencowe, 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 evidence from Mr D Hutchison and Mr P Hignett, both qualified and experienced town planning consultants, and Ms B Sedgley, Ms A Harris and Ms H Stacey, all occupants of dwellings adjoining the subject land.

The Subject Land and Locality

3. The subject land is a rectangular allotment with a frontage of 15.24m to Kneebone Street and a depth of 32.0m, producing a total area of 487.68m2. It is more particularly described in Certificate of Title 5648 Folio 420 as Lot 542 in Filed Plan 10805 in a Hundred of Adelaide. On the land is situated a single-storey bungalow which appears to date from the 1920's or 1930's. It is in a relatively poor state of repair. A timber-framed shed, approximately 25m2 in area, is located on the western boundary of the land.

4. The land is fenced with a combination of galvanised iron and colorbond fencing to the side and rear boundaries and colorbond fencing to the street.

5. A single significant tree is located in the south-western corner of the land, adjacent to the street frontage.

6. The localities defined respectively by Messrs Hutchison and Hignett, for the purpose of their evidence, were essentially the same, taking in development on both sides of Kneebone Street between Weller Street to the west and Boffa Street to the east, together with properties on the eastern side of Weller Street and the western side of Boffa Street and dwellings fronting the southern side of Mansfield Street, which is to the immediate north of Kneebone Street.

7. Development within that locality consists of a range of primarily single-storey detached dwellings in a range of architectural styles, ranging from the late 19th Century to the 1930's. The dwelling at 4 Kneebone Street has a second storey addition, and at least one other features a second level contained within the roof space.

8. I agree with the evidence of Mr Hignett that the locality has a cohesive character "based largely on the strong ' urban design linkage' of a straight road closed at both ends and lined with mature trees with detached dwellings of generally homogeneous character based on early 20th Century vernacular cottage and house aesthetic".

9. A pair of narrow-fronted semi-detached dwellings is located at 35/37 Kneebone Street, diagonally opposite the subject land to the west, and a similar pair located at 57A Weller Street on the western margin of the locality.

10. Setbacks in the locality typically range from 4.0m to 6.0m wide, these reducing to as little as 1.0m on a number of narrow allotments at the eastern end of the locality.

11. The adjoining properties, 8 and 12 Kneebone Street, obtain vehicular access by way of driveways located on the immediate boundaries of the subject land with a covered pergola and carport/garage respectively extending to the boundaries of 10 Kneebone Street.

The Proposal

12. It is proposed to demolish the existing bungalow on the subject land and construct a pair of two-storey semi-detached dwellings occupying the full width of the subject land. Each dwelling would have a single garage located respectively on the eastern and western boundaries of the subject land with access obtained by way of a timber-panelled garage door located under a verandah extending for the full width of the allotment.

13. Each dwelling features a landscaped entry court, entry foyer, laundry, toilet, kitchen, dining and living area at ground floor level, and 2 bedrooms, an ensuite/bathroom, a small open study and a separate bathroom within the upper level.

14. The upper level of the development has been designed to be accommodated within the roof space of the building such that external wall heights are 5.0m, a dimension similar to the wall heights of the adjoining dwellings.

15. Setbacks from the front boundary of the subject land would vary, the setback to the open portico being 4.5m, that to the entry court 5.0m, and that to the front wall of the garage, 7.0m.

16. Side boundary setbacks also vary, the garage walls being located on the western and eastern boundaries, with the main section of side wall then being set back 2.0m, including the upper storey ensuite and bathroom, and then stepping back to 2.8m for the greater part of the upper storey wall.

17. Proposed construction materials are rendered brick veneer masonry walls, timber-framed doors and windows, colorbond roof sheeting and timber panelling for the garage doors.

18. Access to the eastern most dwelling would be obtained via an existing crossover, with a new crossover and driveway providing access to the westernmost dwelling. The latter crossover would be angled to avoid the significant tree in the southwestern corner of the subject land.

Assessment

19. The subject land is situated within the Residential B300 Zone as depicted on Map Un/4 in the Development Plan for the City of Unley dated the 25 October 2001. The "desired character" statement for that zone is in the following terms:

Residential B300 Zone

Desired Character

"This Zone is intended to continue as an established and attractive housing area offering a variety of dwelling types of not more than two storeys on a range of allotment sizes over much of the Unley area.

All types of single storey and two-storey housing development in this Zone should ensure that the character and levels of amenity of the locality enjoyed by existing residents is substantially maintained.

Housing Types

A wide variety of housing types is evident in the Residential RB300 Zone. Development should reflect the type and appearance of housing in its immediate environs having regard to wall heights, roof forms, use of and style of verandahs, external materials, proportions and areas of windows and front and side boundary set-backs.

It is intended to continue as an established residential area containing a variety of sound, existing dwellings on individual allotments with limited and appropriate infill, mainly in the form of semi-detached dwellings and other forms of infill housing on larger sites or sites containing uses incompatible with living areas or unsound dwellings. Areas adjoining tram and train stations and Cross Road may be most suitable for development.

Streetscape

The balance between trees and planting and built form as dominant elements in the Zone varies from locality to locality. Development should respond to both elements ensuring a high standard of compatible built form as well as tree planting and landscaping which maintains and improves the appearance of the locality."

20. The sole objective for the zone is as follows:

"Objective 1: Provision for a range of dwelling types of up to two storeys compatible in form, scale and design with the existing positive elements of the character of the area."

21. Relevant zone principles are as follows:

"Principle 1: Development should be primarily for dwellings of up to two storeys compatible in form, scale and design with existing positive elements of the character of the area."

"Principle 2: Dwellings should have a site area of not less than 300 square metres (averaged for three or more dwellings sharing a common access). In the case of hammerhead allotments or allotments incorporating a right of way or shared access for one to two dwellings, the area of the 'handle' or right of way is excluded from individual dwelling site areas."

"Principle 3: Development should be primarily accommodated by infill between existing sound and attractive dwellings or replacement of incompatible land uses and unsatisfactory dwellings."

"Principle 5: Development should provide for attractive front garden landscaping, including the planting of at least one tree per dwelling."

22. Zone Principle 7 provides, inter alia, that dwellings of not more than two storeys are a consent form of development within the Residential B300 Zone. Council Wide Development Plan provisions of particular relevance are as follows:

"Objective 5: The amenity of localities not impaired by the appearance of land, buildings and objects."

"Objective 27: Preservation and enhancement of the character of residential areas through sensitive and selective in-fill and replacement development and retention and rehabilitation of existing sound and attractive housing."

"Objective 28: A diversity of housing to meet the needs and preferences of the community."

"Objective 54: The conservation of significant trees in Metropolitan Adelaide which provide important aesthetic and environmental benefit."

"Principle 197: Where a significant tree:

(a) makes an important contribution to the character or amenity of the local area; or

(b) is indigenous to the local area and its species is listed under the National Parks and Wildlife Act as a rare or endangered native species; or

(c) represents an important habitat for native fauna; or

(d) is part of a wildlife corridor of a remnant area of native vegetation; or

(e) is important to the maintenance of biodiversity in the local environment; or

(f) forms a notable visual element to the landscape of the local area;

development should preserve these attributes."

"Principle 198: Development should be undertaken with the minimum adverse affect on the health of a significant tree."

"Principle 200: Development involving ground work activities such as excavation, filling, and sealing of surrounding surfaces (whether such work takes place on the site of a significant tree or otherwise) should only be undertaken where the aesthetic appearance, health and integrity of a significant tree, including its root system, will not be adversely affected."

"Principle 201: Land should not be divided or developed where the division or development would be likely to result in a substantial tree-damaging activity occurring to a significant tree."

23. The reasons for refusal specified by the Council in its Decision Notification Form were that the proposal was:

"contrary to the Development Plan Unley (City), Objectives 5, 8, 27 and 54, Principles of Development Control 63, 64, 77, 197, 198, 200 and 201, Residential B300 Zone Objective 1 and Residential B300 Zone Principles of Development Control 1 and 2, in that the proposed development:

• is significantly below the required minimum site area per dwelling of 300m2;

• involves building size, scale and design that will not be compatible with the existing positive elements of the character of the locality;

• involves building mass and proportions, exacerbated by undersized sites, that will dominate and have an intensive impact upon the streetscape and neighbouring properties, character and amenity; and

• proposes a driveway and fence footing in very close proximity of the base of a healthy significant tree that is potentially likely to adversely affect the health, integrity and stability of the tree that makes an important contribution to the character and amenity of the locality."

24. At the commencement of proceedings, the Court was advised that, as a consequence of minor amendments to the proposal which had been made following its refusal by the Council, the latter was satisfied that there was no longer any risk of damage to the significant tree and accordingly, the Council no longer relied on the significant tree provisions of the Development Plan as a basis for refusal.

25. Within the Residential B300 Zone, "dwellings of not more than two storeys" can be granted consent, subject to satisfying the relevant provisions of the Development Plan. The use of the generic term "dwelling" suggests that all types of dwellings - detached, semi-detached, row dwellings and residential flat buildings - can be granted consent, provided they are not more than two storeys in height. Accordingly, the subject proposal is a use of land which can be accommodated within the zone, provided it is, in the terms used by Zone Objective 1, "compatible in form, scale and design with existing positive elements of the character of the area".

26. Zone Principle 2 provides that dwellings should have a site area of not less than 300m2. The subject proposal falls well short of this requirement, providing sites of 244m2 each, although, on the evidence, it meets other relevant quantitative criteria.

27. It is established law that the provisions of the Development Plan are advisory rather than mandatory: SA Housing Trust v Development Assessment Commission (1994) 63 SASR 35. Accordingly, the shortfall in site area is not inevitably fatal, provided it can be demonstrated that the proposal is, nonetheless, in general conformity with the Development Plan. In this regard, the observations of Debelle J in City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56, are apposite:

"... it is important to distil from the relevant provisions of the plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control."

28. In many instances, as is the case for the Residential B300 Zone, Councils establish density controls for particular zones by specifying a minimum site area for dwellings. Failure to meet the minimum site area often manifests itself in a proposal's inability to meet other design and siting criteria, for example, site coverage, private open space, setbacks, or height. In this instance, the proposal satisfies all relevant quantitative criteria, including front and side setbacks, carparking, private open space and site coverage. Does it also satisfy the qualitative provisions of the Development Plan?

29. The evidence of Mr Hignett was that, in a number of important respects, it did not. Having undertaken an analysis of the design of the proposed development and the character of the surrounding locality, he concluded that:

"1. The subject proposal is substantially out of keeping with the predominant character, amenity, appearance and attractiveness of the locality and related provisions of the Development Plan.

2. The subject proposal is substantially at variance with the predominant height, scale and bulk of buildings in the locality and related provisions of the Development Plan.

3. The subject proposal is overdevelopment and inappropriate on the restricted land available and is contrary to related provisions of the Development Plan."

30. In Mr Hignett's assessment, the predominant character of the locality was "single storey dwellings with approximately 30 degree pitched metal roofs on dwellings with high ceilings and therefore high external walls having frontages which incorporate verandahs close to the street alignment. Individual dwellings are clearly articulated by space between side walls and variation in fence design". Aspects of the proposal which, in Mr Hignett's view, did not harmonise with that character, included:

(a) a roof pitch to both the dwellings and verandahs which was substantially greater than those typical of the locality;

(b) the absence of a gap between the side boundaries of the subject land and the proposed dwellings, when viewed from the street frontage;

(c) detailing which bore little relationship to existing buildings in the locality;

(d) a roof form which was suggestive of two separate dwellings rather than one dwelling;

(e) garaging which occupied approximately half the available frontage, thereby visually dominating the street frontage;

(f) use of timber screens to eliminate overlooking of adjoining properties, thereby creating detrimental visual impacts on, and some overshadowing of, adjoining properties; and

(g) unsatisfactory internal amenity as a consequence of the use of high level windows or obscure glazing to eliminate overlooking from upper levels.

31. Having regard to all the above, Mr Hignett concluded that the proposal was not "compatible in form, scale and design with the existing positive elements of the character of the area or locality", as sought by Zone Objective 1 and Principle 1.

32. Mr Hutchison's evidence was that, notwithstanding the proposal's failure to comply with the minimum site area per dwelling prescribed by Zone Principle 2, the available site area was sufficient to accommodate dwellings in compliance with the extensive design and siting criteria applicable to residential development, and the frontage, depth and area of each dwelling site was comparable to a number of other dwelling sites in the locality, these being 4 and 6, 21 to 27, 35 and 37 Kneebone Street. While Mr Hutchison acknowledged that these smaller allotments did not represent the predominant area and shape of allotments within the locality as sought by Council Wide Principle 43(b), allotments of these dimensions were, in his view, an integral and significant part of the streetscape.

33. Mr Hutchison considered that the existing positive elements of the locality included:

"• the singular residential use of land in the locality;

• the quiet residential amenity of the street;

• the modest scale and proportions of most dwellings;

• relatively consistent design of dwellings within a range of traditional architecture of the late 1800's and early 1900's;

• evidence of a high level of maintenance of individual properties;

• relatively small but landscaped front yards of most dwellings, resulting from largely consistent building setbacks from road boundaries; and

• general consistency of overall building height and form."

34. In Mr Hutchison's assessment, the subject proposal's form, scale and design had a great deal in common with the above elements. The new building was modest in scale and had proportions not dissimilar to those of many dwellings in the locality, particularly those on the narrower allotments or sites. The architectural detailing drew on the features of many of the older dwellings in the locality and the size of the front garden and the setback from the road boundary were both consistent with those found on many of the adjoining allotments. The articulated roof treatment reflected the roof form of the semi-detached dwellings on the opposite side of Kneebone Street, and the lower roof over the garage and existing court were derivative of the verandah elements common in other buildings in the locality.

35. With reference to Mr Hignett's concern regarding the dominance of the proposed garages, contrary to the provisions of Council Wide Principle 69, Mr Hutchison considered that the intent of that principle was met by the proposal in that:

• the setback of the garages from the entry courts, and the shadowline created by the overshadowing section of roof, reduced the prominence of the garages in the street elevation of the proposal;

• the use of timber-panelled doors also assisted in reducing the visual impact of the garages; and

• the garages utilised the narrowest available doors (2.4m).

36. The Development Plan for the City of Unley incorporates Council Wide Principles of Development Control for Residential Development which take a form significantly different to those in most other Development Plans inasmuch as they take the form of Performance Criteria and related Design Techniques. The preamble to the Residential Development Principles in the Plan explains the role of each:

"Principles of development control are intended to give effect to the Objectives for Residential Land Division. One element of the principles of development control are the Performance Criteria, which when met, will achieve the Objectives. Design Techniques are provided as specific methods of meeting particular Performance Criteria, setting the standards or measurements to be achieved.

The Design Techniques are not the only possible ways of achieving the Performance Criteria but they represent a range of carefully considered solutions likely to satisfy the Performance Criteria. If other techniques are utilised to meet Performance Criteria, the Design Techniques should guide the level, quality and effectiveness of the solutions proposed. Alternative solutions should be as good as, or better than the Design Techniques. In some cases using lesser numerical standards not conforming to the relevant Design Techniques may involve an acceptable or beneficial trade-off against other design considerations, or may be warranted due to the shape, dimensions or orientation of the subject land."

37. Mr Henry submitted that the criticisms of the proposal made by Mr Hignett in evidence should be accorded little, if any weight, inasmuch as the proposal met the relevant Performance Criteria by adopting one or more of the Design Techniques relevant to the criterion in question.

38. The desired character statement and objective and principles for the Residential B300 Zone place emphasis on the importance of new housing being compatible with the positive elements of an area's existing character. They do not, generally speaking, specify how that should be done, and it is in the Council Wide Residential Development Principles that more specific design considerations are set out.

39. When the Performance Criteria and related Design Techniques are applied to the proposal, those aspects in which it appears deficient are few: proposed sunscreens on the eastern and western side of the proposed dwellings stand clear of the walls and therefore intrude slightly into the stipulated side setback; the M-shaped roof form does not create the impression of a single dwelling as sought by Performance Criterion 65, albeit that it reflects the roof form of a pair of semi-detached dwellings opposite; and garaging may, on one view, occupy slightly more than 50% of the site frontage, contrary to Performance Criterion 69 and Design Technique 69.1, although I tend to the view that, in the case of a single garage, the width of the garage door rather than that of the building plane accommodating it is what should be measured, in which case the subject proposal satisfies PC69.

40. Whether the architectural detailing of the proposal is compatible with the existing positive elements of the character of the locality is a subjective question on which the Development Plan affords little assistance. While there are elements of the detailing with which I might take issue, it has to be remembered that the role of planning authorities, and, on appeal, this Court, is not to secure the best possible development on any particular site, but rather, a development which is acceptable having regard to the relevant provisions of the Development Plan. In the oft-quoted words of Jacobs J in his decision in Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93, at 101:

"There is scarcely any planning proposal, however good, to which some legitimate objection cannot be taken, but that does not mean that it has to be refused. On the contrary, the duty of the Planning Appeal Board is to look at the proposal as a whole, to consider all the evidence, including the opinion of expert planners, in support of the proposal as a desirable and sensible form of land use and development, to weigh the legitimate objections and criticisms, with due regard to the public interest, but not ignoring private interests if both such interests can be satisfactorily reconciled, and to determine in the end whether the balance lies in favour of granting or refusing approval."

41. Although the Planning Appeal Board has long since ceased to exist, these remarks have equal application to this Court.

42. Having regard to all the above, I have concluded that, on balance, the subject proposal:

(a) meets the relevant quantitative measures prescribed by the Development Plan, save for site area;

(b) is of a design and appearance which will be compatible with the existing positive elements of the character of the locality; and

(c) will not result in overlooking or unreasonable overshadowing of adjoining properties.

43. Having so concluded, I have further concluded that, subject to appropriate conditions, the subject proposal warrants Provisional Development Plan consent.

44. I intimated this to the parties by memorandum dated 22 January 2003. On the resumption of proceedings, Ms Blencowe submitted to the Court draft conditions of consent. Mr Main advised that these conditions were acceptable to the appellant.

45. The order of the Court is that Provisional Development Plan consent is granted for the subject proposed development, subject to the following conditions:

1. Development shall take place in accordance with the plans marked Exhibit A1, Proposal Plan and Exhibit A4, Front Fencing to Proposed Development except as modified by the following conditions, and all works detailed in the plans and required by the following conditions shall be completed prior to the occupation of the development.

2. A suitable tree shall be planted in the front yard of each dwelling, each tree being at least 1.0m in height at the time of planting.

3. The specified pruning and maintenance work for the significant tree shall be carried out by a qualified arborist in accord with the tree pruning guidelines of Australian Standard AS 4373 (1996).

4. The demolition of the existing structures and the excavation of the site for the construction of the footings for the proposed dwelling, fence and the driveway shall be undertaken carefully so as not to sever any roots with a diameter of greater than 50mm. The excavation of the driveway area and fencing within the dripline of the tree shall be carried out by hand to ensure that primary roots are not damaged or severed. Except during construction of the driveway, the root zone of the tree shall be protected by the erection of a fence of a minimum height of 1.2m below the dripline of the tree. No storage of goods or heavy machinery, or compaction is to occur within the root zone area. No service trenches or drainage trenches are to be located within the root zone of the significant tree.

5. The proposed driveway for the western dwelling shall be constructed using porous paving with sand filled joins to maximise air and water access to the roots of the significant tree, and the driveway shall be constructed with minimal excavation and by hand to further avoid root damage and disturbance.

6. The portion of the proposed front fencing adjacent to the significant tree shall be either brush fencing or tubular steel open fencing with no footings as indicated on Exhibit A4 to minimise root damage and disturbance, with no roots with a diameter of greater than 50mm being damaged or severed.

7. A minimum clearance of 1.0m between driveway crossovers and existing street trees shall be provided.

8. All stormwater from the building and site shall be disposed of so as to not adversely affect any properties adjoining the site or the stability of any building on the site. Stormwater shall not be disposed of over a crossing place and any connection to the street water table is subject to application and shall be in accordance with requirements and to the satisfaction of Council.

9. The finished floor level of the proposed dwelling shall be a minimum of 150mm and no greater than 200mm above the top of the kerb in Kneebone Street.

10. The east and west facing upper windows comprising the ensuite and bathroom shall have a sill height of 1.7m and the windows to the computer room and bedrooms 1 and 2 be treated with frosted glass to a height of 1.7m.

11. Details of any airconditioning to be placed on the exterior of the building in association with this development shall be submitted to and approved by Council.

12. The construction of the crossing place(s)/alterations to existing crossing places shall be carried out in accordance with any requirements and to the satisfaction of Council at full cost to the applicant. Any application to install or amend a crossing place must be made on the appropriate form obtained from Council.

13. Any necessary alterations to existing public infrastructure (stobie poles, lighting, traffic signs and the like) shall be carried out in accordance with any requirements of, and to the satisfaction of, the relevant service providers.