Scoleri Constructions Pty Ltd v City of West Torrens No ERD-03-220 [2003] SAERDC 99 (18 November 2003)

Last Updated: 23 November 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

18/09/2003 to 19/09/2003, 18/11/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Applicant appeal against refusal of application to demolish an existing dwelling and construct two residential flat buildings and two group dwellings, together with associated carports - Residential 2 Zone - whether the proposal medium or high density - appropriateness of proposed design in the locality - proposal properly characterized as medium density - design acceptable with minor modifications - proposal generally consistent with relevant provisions of Development Plan - appeal upheld and Provisional Development Plan consent granted, subject to conditions.

• Odwell v City of Mitcham ERDC Nos 286 & 351 of 1994;
• Richards v City of Norwood, Payneham and St Peters ERDC No 863 of 200;
• Bolto v City of Charles Sturt ERDC No 637 of 2002, referred to.

Representation

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

Respondent: CITY OF WEST TORRENS
Counsel: MS A NICHOLLS - Solicitors: NORMAN WATERHOUSE

ERD-03-220

Judgment No. [2003] SAERDC 99

18 November 2003

SCOLERI CONSTRUCTIONS PTY LTD

v

CITY OF WEST TORRENS

(ERDC No. 220 OF 2003)

[2003] SAERDC 99

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against the decision of the City of West Torrens ("the Council") to refuse an application by Scoleri Constructions Pty Ltd ("the Appellant"), which application sought Provisional Development Plan consent for the construction of two two-storey residential flat buildings and two group dwellings together with associated carports, driveway and landscaping on land at 201-203 Holbrooks Road, Underdale.

The Subject Land and Locality

2. The subject land comprises two titles and has a combined area of 1,376.8m2. It is situated on the eastern side of Holbrooks Road, a short distance south of the junction of that road and Norman Street. It has a frontage to Holbrooks Road of 31.7m and a depth of approximately 43.6m. On the land is situated a detached dwelling which appears to date from the 1960's, a residential outbuilding of similar age and an in-ground swimming pool. A masonry wall with two entrance gateways is located on the Holbrooks Road frontage.

3. There are two significant trees on the land. One is located within the front garden area and the other in the rear garden, adjacent the eastern boundary.

4. The land is located on the eastern side of Holbrooks Road and lies within the Residential 2 Zone depicted on Map WeTo/5 in the Development Plan for the City of West Torrens dated 16 January 2003.

5. In the immediate locality of the subject land, single-storey detached dwellings situated on allotments of between 600m2 and 800m2 in size are the predominant land use. Dwellings are of varying age and design, some dating back to the early 20th Century, others of more recent origin. Within the locality there are also examples of higher density unit development, mostly single-storey, and typically taking the form of development running down the length of the allotment, situated on or close to one side boundary and with a driveway extending to carports situated at the rear of the allotment.

6. On the northern corner of the intersection of Norman Street and Holbrooks Road is a bowling club with associated greens and north of this, a bottle shop and a separate, unrelated office and warehouse complex.

7. Some 250m south of the subject land, on the southern side of the T-intersection of Holbrooks Road and Henley Beach Road, there is a church, a small supermarket, a range of variety shops and a motor repair station situated within a Local Shopping Zone. On the northeastern corner of this intersection is a Mobil Service Station, and on the northwestern side, a small Consulting Room development. Both of the latter are located within the Residential 2 Zone.

Proposal

8. It is proposed to establish two residential flat buildings, each of two storeys and each containing two dwellings, parallel to the northern and southern boundaries of the subject land. It is further proposed to establish two group dwellings, each of two storeys, immediately to the east of each residential flat building. Each dwelling would have a ground floor area (including carport) of approximately 96m2, the combined site coverage being approximately 42%. Private open space would take the form of a ground level area of approximately 60m2, located to the rear of each dwelling and having dimensions typically 14m x 4.3m, and a secondary ground level courtyard located to the front of each dwelling, and with dimensions typically 6.0m x 1.0 m. The proposed buildings would be set back 4.3m from both the northern and southern boundaries of the subject land and 6.0m from the front and rear boundaries. Carports, however, would extend between the proposed dwellings and the front and rear boundaries of the subject land.

9. A total of 12 covered carparking spaces would be provided to service the six dwellings, with access to the site being obtained from a new 7.0m wide driveway and crossover from Holbrooks Road. The driveway would reduce in width to 3.6m between each row of dwellings.

10. The proposed dwellings are of contemporary design, with a flat roof form and a total height of 6.6m. Materials and finishes would include rendered masonry structural and internal courtyard walls, weatherboard front and rear facades, rendered fibre-cement roof trim and aluminium windows with slatted timber screens to western facades.

Assessment

11. As I have noted, the subject land is situated within the Residential 2 Zone. Relevant zone provisions are as follows:

Residential 2 Zone

"Objective 1: A zone primarily accommodating detached dwellings on individual allotments and semi-detached dwellings, with row dwellings and residential flat buildings of medium densities in suitable areas."

"Principle 1: Development undertaken in the Residential 2 Zone should be, primarily, detached dwellings on individual allotments and semi-detached dwellings; but row dwellings and residential flat buildings of medium densities may be suitable in certain parts of the zone."

12. By virtue of the operation of Zone Principles 6 and 7, residential flat buildings and group dwellings are consent forms of development within the Residential 2 Zone. Other Development Plan provisions of particular relevance are as follows:

Council Wide

"Objective 5:Intensification of residential and employment generating development in the central and eastern areas of West Torrens achieved through:

(a) an increased density of development in suitable locations along designated public transport routes; and

(b) an increase in the number of dwellings by allowing medium-density residential development in those parts of the council area which have the most potential for the erection of new dwellings and the replacement of existing housing stock."

"Objective 22: A compact urban area."

"Objective 23: A variety and choice of dwelling types including more compact forms of dwellings of varying size and type to meet the needs and preferences of all sections of the community."

"Objective 24: An adequate supply of additional housing for people of both limited and ample means for rental and purchase."

"Objective 25: Containment of housing costs through the encouragement of a full range of design and development techniques."

"Objective 26: Safe, pleasant, convenient and efficient residential zones."

"Objective 27: The creation and maintenance of an attractive living environment."

"Objective 29: Where demolition of an existing dwelling is proposed, the replacement dwelling development designed and sited to achieve the objectives of the zone and to provide for a good quality of urban design."

"Objective 30: A range of residential densities throughout the city appropriately located with regard to facilities and public transport."

"Objective 31: The renewal and rehabilitation of selected areas."

"Objective 89: The amenity of localities not impaired by the appearance of land, buildings and objects."

"Principle 7: New housing and other urban development should:

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

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

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

"Principle 22: Development should include appropriate provision on the site to enable the parking, loading, unloading, turning and fuelling of vehicles."

"Principle 24: Development should provide on-site parking to accommodate all vehicles which are expected to visit the site. This requirement may be reduced where:

(a) designated parking spaces are available for the development on an adjoining or nearby site at all times when it is required, and access from these parking spaces to the development is safe and convenient; or

(b) it can be demonstrated that users of the development have safe, close and convenient access to frequent and regular public transport at the times of operation of the development."

"Principle 41: Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live."

"Principle 43: Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:

(a) for adjacent properties; and

(b) for each dwelling and private open space."

"Principle 52: The floor space, and bulk of a residential building and the space around the building should be appropriate to the locality in which the building is to be erected."

"Principle 56: Residential development should express individuality and character. However, where a strong local character exists, new buildings should be designed to harmonise with that which is existing in terms of form, mass, scale, colours and textures of materials, landscaping and set-back distances."

"Principle 58: Set-backs from front boundaries should achieve a satisfactory relationship to adjacent development and the streetscape. Set-backs from the side and rear boundaries should be related to the height of buildings, the length of their walls, and the size and location of their openings."

"Principle 175: The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated."

"Principle 178: Development should present a frontage to public roads which is of a high architectural standard."

"Principle 187: A minimum of 10 percent of a development site should be landscaped."

"Principle 188: Landscaping should be provided to:

(a) add to the attractiveness of the site;

(b) assist in the control of temperatures within buildings to minimise energy requirements for heating and cooling;

(c) provide shade for parked cars;

(d) screen refuse collection areas;

(e) reduce the visual monotony of large blank wall areas; and

(f) provide a substantial visual screen between non-residential and residential developments."

"Principle 189: Landscaping should be located:

(a) between buildings and road boundaries;

(b) around the perimeter of sites; and

(c) between rows of parking spaces within parking areas."

"Principle 190: No building should be erected, added to or altered on any land so that any portion of such building will be erected, added to or altered nearer than eight metres to the existing boundary of any road, or to the boundary of any land shown as being required for road widening on the Plan deposited under the provisions of the Metropolitan Adelaide Road Widening Plan Act, 1972-1976."

13. Of some relevance also are Council Wide Objectives 1 and 6 and Principles 1, 17, 18, 34, 35, 37, 46, 47, 48, 55, 62 and 63.

14. It was common ground between the parties that the issues in dispute in this matter were the acceptability, in the locality, of both the density and the design of the subject proposal. In considering these questions the Court had the benefit of expert evidence by Mr M Osborn, a qualified and experienced consulting town planner, Mr C Doyle, a qualified and experienced town planner in the employ of the respondent Council, and Mr D Alexander, a qualified and experienced architect. The Court also conducted a view of the subject land and its locality, in the company of the parties, and received a number of exhibits.

Density

15. Zone Objective 1 refers, inter alia, to "residential flat buildings of medium densities" being appropriate in "suitable areas" of the Residential 2 Zone. It was common ground between the expert planners that the subject land fell within a suitable area, being situated close to shops and on a major public transport route. The question on which the planners differed was whether the proposal constituted "medium density".

16. Mr Doyle, in his statement of evidence, identified twelve unit complexes within the locality, units comprising battle-axe developments, semi-detached dwellings, group dwellings and residential flat buildings. By averaging the site areas for each of these developments and dividing by the total number of unit developments, Mr Doyle arrived at an average site area per dwelling unit of 277m2, a figure which, in his view, was well above the average site area per dwelling unit proposed (230m2) and supported his view that the proposal represented high, rather than medium density development.

17. Mr Osborn, noting that a residential flat building was a complying form of development within the Residential 3 Zone in the Development Plan for West Torrens, was of the view that an examination of the complying development standards for residential flat buildings was of assistance in determining what constituted medium and high density development. Noting that there was a sharp divergence between the maximum floor area ratio, minimum open space ratio and minimum site area/dwelling prescribed for development of one to three storeys, by comparison with development of four to six storeys, Mr Osborn concluded that the criteria expressed for buildings of four or more storeys were generally representative of a high density form of development, whereas those for buildings of one to three storeys were more representative of medium density development. The subject proposal, in terms of its maximum floor area ratio and site area/dwelling, lay comfortably within the one to three storey range for complying residential flat buildings in the Residential 3 Zone, suggesting that the proposal constituted medium density development. Mr Osborn acknowledged that the open space ratio proposed was more consistent with that for a high density development, but considered that, overall, the proposal nonetheless constituted medium density development.

18. This Court has often had occasion to consider the meaning of the terms "low", "medium" and "high density". Its established view can be summarised as follows:

(a) there is no absolute measure of low, medium or high density, these terms having to be assessed in the context established by existing development and relevant zone provisions;

(b) where a proposal lies within the spectrum of densities is ultimately a matter of planning judgment, taking into account criteria such as allotment size, site coverage or number of bedrooms per dwelling: Odwell v City of Mitcham (ERDC Nos. 286 and 351 of 1994); Richards v City of Norwood, Payneham and St Peters (ERDC No. 863 of 2000); Bolto v City of Charles Sturt (ERDC No. 637 of 2002).

19. In assessing whether the proposal constitutes medium or high density development it is relevant to consider, as Mr Doyle has done, the nature of existing unit development in the locality. It is also relevant to consider the residential zoning provisions for the Council area generally, as Mr Osborn has done, in order to gain some appreciation of the meaning of the terms "medium density" and "high density" in the context of those provisions.

20. In undertaking that assessment I have taken the view that, while the terms "medium density" and "high density" may have different meanings when applied to, say, the City of Adelaide, than they might have when applied to a suburban or semi-rural area, they should be considered to have the same meaning from one zone to another within a single Council area. Were that not the case, those Council Wide Development Plan provisions, such as Objective 5 and Principle 50, which make reference to those terms, would be impossible to interpret.

21. I have some difficulty with the statistical analysis undertaken by Mr Doyle because the result of an averaging process can be distorted by a small number of atypical readings. It is entirely possible, for example, to drown in a stream which has an average depth of 50mm! An analysis of Mr Doyle's tabulations indicates that, of the 52 dwelling units identified by him in the locality, 32 (or 62%) had an average site area of less than 230m2, and only 14 (27%) an average site area greater than the 277m2 average calculated by Mr Doyle. On the basis of my analysis, I cannot agree with Mr Doyle's assertion that the proposed development represents a higher density of development than that found in the locality, and one more consistent with the density expected in the Residential 3 Zone. It seems to me that the density of the proposal falls comfortably within the range of densities evident typical of unit development within the locality.

22. I am reinforced in that conclusion by a consideration of the Development Plan provisions for the Residential 3 Zone. The objective for that zone envisages, primarily, "dwellings, multiple dwelling and residential flat buildings at medium to high densities". Table WeTo/1 set out conditions applying to complying development which, in the Residential 3 Zone, includes Residential Flat Buildings. Minimum site areas for both Multiple Dwellings and Residential Flat Buildings range from 280m2 for single-storey buildings through 240m2 for two-storey buildings down to 100m2 for buildings of six and more storeys. Maximum Floor Area Ratios range from 0.4 for a single-storey building to 1.5 for six storeys and over, and Minimum Open Space Ratio from 1.5 to 0.6m over the same range. As Jacobs J observed in the lead judgment of the Full Court in Corporation of the Town of Walkerville v Adelaide Clinic Holdings (1995) 38 SASR 161, at 181:

"A ..... development which is permitted subject to compliance with .... conditions does not come under the scrutiny of a planning authority at all, and the conditions to be complied with are therefore conservative, if not stringent."

23. The conditions applicable to complying Residential Flat Buildings in the Residential 3 Zone, if regarded as conservative, would again suggest to me that the subject proposal falls squarely within the term "medium density" as that term is used throughout the Development Plan for the City of West Torrens, the average site area proposed being 230m2 and average floor area ratio 0.53.

24. I turn now to consider the second issue in contention in this matter, namely, whether the design of the proposed development is acceptable, having regard to the relevant provisions of the Development Plan and, in particular, those which seek the maintenance of the character and amenity of existing residential areas, such as Council Wide Objectives 27, 29 and 89, and Principles 7, 41, 52, 56 and 175.

25. The evidence of Mr Alexander was that the proposal was a skilfully-designed development which would sit comfortably alongside the adjacent, more traditional dwellings:

".... the local character is not strong. The proposed development replaces a single characterless building of no design merit and introduces a well-designed medium-density development that will add vitality to the locality. Character is not simply achieved through the introduction of roof forms and details that attempt to mimic adjacent dwellings. Well-designed modern buildings harmonise with the existing forms by creating a complimentary [sic] form that is clearly distinct, individual and not a poor copy."

26. Mr Doyle, in evidence, was critical of a number of design aspects of the proposal, in particular:

(a) the siting of carports on the property boundary;

(b) the limited setback of the two-storey section of the dwellings adjacent Holbrooks Road, and the overall prominence of the structures;

(c) its failure to draw upon the design elements prevalent in the locality, including articulation in design and roof form and orientation to the street;

(d) the absence of practical visitor parking on site;

(e) the "tunnel" effect created by the central driveway; and

(f) the restriction of solar access benefits to one side only of the development.

27. With reference to Mr Doyle's concerns regarding the proposal's prominence and setback I note that a detached dwelling, which is a complying form of development in the Residential 2 Zone, is not restricted as to height, albeit to be complying it must be set back at least 8.0m from the street boundary. The two-storey elements of the residential flat buildings are set back 6.0m from the street and are spaced 6.0m apart. I agree with the view expressed in evidence by Mr Alexander that the overall massing and spacing of the proposal, viewed from the street, maintains a scale and rhythm consistent with detached dwellings of a height permissible in the zone.

28. The proposal's failure to draw upon design elements evident in the locality might be of more concern were there a strongly-established and consistent architectural character within the locality. There is, however, a considerable diversity of architectural styles, and some diversity of land use, suggesting that the introduction of a skilfully-designed contemporary development would not have an adverse impact on the locality.

29. It was common ground between the parties that the provision of two parking spaces per dwelling was satisfactory in numerical terms. Mr Doyle, however, was of the view that Council Wide Principles 22 and 24 were not satisfied insofar as there was insufficient room in front of each garage to accommodate a visitor's vehicle, and it would therefore be necessary to open one of the garage doors to park a visitor's vehicle.

30. Mr Osborn, in evidence, noted that Principle 24 did not contain any quantitative standards for on-site carparking, but was of the view that two on-site spaces were adequate for a development of this kind.

31. An examination of Table WeTo/1 (Conditions Applying to Complying Development) reveals that the complying development standard for a Residential Flat Building is one space per dwelling. There is no standard for group dwellings. Inasmuch as complying development standards have been characterised by the Supreme Court in Adelaide Clinic Holdings as "conservative, if not stringent", it seems to me that the provision of two carparking spaces per dwelling amply satisfies the less specific requirements of Council Wide Principles 22 and 24.

32. The concern expressed by Mr Doyle regarding the potential "tunnel" effect created by the central driveway is, in my assessment, adequately addressed by the articulation created by the recessing of the garages and the provision of landscape planting areas abutting the front courtyard wall of each dwelling unit. If landscaping as proposed is established, there will be a measure of screening of the walled areas abutting the driveway, such that the "tunnel" effect is likely to be minimised.

33. The final criticism made by Mr Doyle concerned the orientation of the dwellings on the southern side of the subject land, the living areas to those dwellings, unlike those of the dwellings on the northern side of the land, facing south. This arrangement, said Mr Doyle, failed to take account of the climatic and topographic conditions of the site, contrary to Council Wide Principle 48.

34. Mr Alexander, in evidence, made the observation that the orientation of the southern dwellings required a choice to be made by the architect between maximising solar penetration to living areas and orienting those living areas to a courtyard of usable size. In the case of the northern units, both could be achieved, but in the case of the southern, one only. It was, in Mr Alexander's opinion, a legitimate choice for the architect to opt for orientation of living areas to the larger courtyard, and in any event, there would be substantial sunlight penetration to living areas, particularly in winter months, because of the open plan nature of the ground floor of the dwellings and the large window areas on the northern elevations. I agree.

35. On balance, I have concluded that the proposal would be in sufficient conformity with the relevant provisions of the development plan to warrant Provisional Development Plan consent, save for two issues:

(a) the juxtaposition of the roof of the carports to the westernmost dwellings and the front wall, which , in my assessment, will produce an unsatisfactory appearance from the street; and

(b) the unresolved nature of the Council's position on the two significant trees on the subject land.

36. With reference to the first of these issues, there was evidence that there was a two-metre strip of land to the immediate west of the boundary of the subject land, which strip had been acquired by the Department of Road Transport for road widening purposes but was now no longer required. It appears there would be no objection from that Department to that area being landscaped, but that has not been confirmed to my satisfaction. The alternative, of the appellant purchasing the strip of land and re-attaching it to the title of the subject land, does not appear to have been explored. Either of these courses of action would go some way towards minimising the impact of the junction between the carport roofs and the wall on the property boundary, but other measures, such as reducing the width of the units to allow the carport roofs to be moved off the western boundary of the subject land, may also be necessary.

37. The issue of the significant trees arises as a consequence of the Council, when it made its decision on the subject proposal, being unaware of the fact that the development would necessitate the removal of two significant trees. That being the case, there has been no evidence as to whether either or both those trees should be retained in the event that the proposal is to proceed. Given my conclusion above, it is necessary for the Council to resolve its position on the trees. If it does not consider the trees should be retained, that will be the end of the matter. Should it decide the trees warrant retention, having regard to the relevant provisions of the Development Plan, I will afford the parties the opportunity to call expert evidence on the trees before I make a final decision.

38. By memorandum dated 15 October 2003 I advised the parties of my conclusions above, and invited them to confer regarding:

(a) the design relationship between the roof of the westernmost carports and the western boundary wall;

(b) the status of the significant trees; and

(c) if appropriate, proposed conditions of consent.

39. On the resumption of proceedings, Mr Botten tendered amended plans incorporating revisions to the western elevation of the proposal, with resultant changes to the front wall and carports (Exhibit A7). Mr Botten also tendered a Decision Notification Form dated 14 October 2003, granting Council consent to an application by the Appellant to remove the two significant trees on the subject land, and handed up a draft set of conditions which he advised had been agreed by Council.

40. Ms Nicholls confirmed that the amended plan was satisfactory from the Council's point of view, as were the draft conditions handed up by Mr Botten.

41. The order of the Court is that the decision of the Council on Development Application No. 211/179/2003 is set aside, and Provisional Development Plan Consent granted, subject to the following conditions:

1. Development is to take place in accordance with the supporting documentation and plans (including site plans and elevations numbered 02105-DA-Rev-5 drawn by Mladen Zujic and Siteworks and Drainage Plan prepared by Jim Pantzikas and Associates dated 27 March 2003) relating to this Development Application, as amended by Exhibit A7 in these proceedings, other than as modified by any conditions attaching to this consent.

2. Any build-up of the site level above existing ground level shall be retained at the boundaries of the site by a suitable retaining wall. Such retaining wall shall be designed to accepted engineering standards, and not be of timber construction if retaining a difference in ground level exceeding 200 mm.

3. A stormwater drainage system shall be designed and installed upon the land in accordance with the building codes of Australia, and storm water shall be discharged to the street watertable by means of a galvanised RHS steel section drainage under the footpath in accordance with City of West Torrens Drawing Nos. 8685-100 or 101, whichever shall apply.

Note: An application is required to be lodged with Council's Engineering Department. New stormwater connections to the street kerb and watertable must be offset a minimum of 500mm from adjacent existing or proposed access crossing points.

4. Each dwelling shall be fitted with a stormwater detention tank satisfying the following design criteria:

• Each dwelling is to have a minimum detention volume of 700 litres

• Each dwelling is to have an allowance of 300 litres for traditional rainwater collection/use. This additional cell should be designed to receive initial inflows to the tank with surcharge flowing into the detention components.

• A minimum of 85% of the roof area from each dwelling must be directed to the detention storage.

• Discharge from the detention tanks is to be limited through the utilisation of an outlet orifice. Orifice plates are to be designed to restrict flow to 1.0 litres per second from the detention tank arrangement.

5. The driveway and car parking area shall be surfaced and drained to the reasonable satisfaction of Council prior to the development being occupied.

6. All areas nominated as landscaping or garden areas on the approved plans shall be planted with a suitable mix and density of trees, shrubs and groundcovers including some trees that are at least 1.5 metres in height when planted. Autumn Blaze (Acer x Freemanii "Jeffersed") or Chanticleer Pear (Pyrus calleryana "Chanticleer") shall be planted in the road frontage and central driveway locations in lieu of Gleditsia tricanthos. All landscaping should be established to the reasonable satisfaction of Council prior to occupation of the dwellings herein approved.

7. All plants existing and/or within the proposed landscaped areas shall be nurtured and maintained in good health and condition at all times with any diseased or dying plants being replaced to the reasonable satisfaction of Council.

8. The landscaping as approved by Council shall be established upon the land within three (3) months of the completion of construction of the dwelling.

9. The north and south facing upper level windows of the proposed two two-storey residential flat buildings and two group dwellings shall be provided with fixed (unopenable) obscure glass to a minimum of 1.7 metres above second floor level to minimise the potential for overlooking of adjoining properties.