Wilczek v District Council of The Copper Coast No ERD-03-319 [2004] SAERDC 1 (6 January 2004)

Last Updated: 11 January 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

19/12/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - applicant appeal against condition of approval imposed by the Council - re-siting a garage outbuilding further back from front boundary - Residential Zone - proposed outbuilding found to be large, obtrusive and dominant with insufficient setback for screen landscaping - site circumstances and locality context considered - proposal at variance with several Development Plan guidelines - appeal dismissed - decision of the Council upheld.

• Development Act 1993 , referred to.

Representation

Appellant: FRANK & SUSAN WILCZEK
In Person

Respondent: DISTRICT COUNCIL OF THE COPPER COAST
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

ERD-03-319

Judgment No. [2004] SAERDC 1

6 January 2004

FRANK & SUSAN WILCZEK

v

DISTRICT COUNCIL OF THE COPPER COAST

(ERDC NO. 319 OF 2003)

[2004] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an Applicant appeal against the decision of the District Council of the Copper Coast ("the Council") to attach Condition 5 to the Provisional Development Plan Consent and Development Approval for Development Application No. 340/365/03, made under the Development Act 1993, seeking the erection of a garage outbuilding associated with an existing dwelling at North Beach, near Wallaroo.

2. The wording of the condition in question is as follows:

"5. Setback - That the garage be be [sic] located no closer than the adjoining carport."

3. It was not submitted that I consider the balance of the approval including other conditions attached, however, I am satisfied that such a decision was not unreasonable considering the Development Plan and the locality context. There is also the question of the validity of the condition, arguably in effect, a refusal to the Application, but I am prepared to accept that it is a reasonable planning condition with planning purpose and intent, sufficiently certain in the light of the local facts, and the position that the appellants have indicated they would abide such a condition, if their appeal is unsuccessful.

4. A summary of some of the relevant details in this matter is as follows:

Date of application: 11 July 2003

Subject land address: 5 Woodforde Drive, North Beach

Existing use: Detached dwelling and outbuildings

Proposal: Erect a triple width garage replacing a small shed associated with the detached dwelling

Relevant Authority: District Council of the Copper Coast

Appropriate Development Plan: Copper Coast (DC) consolidated version 15 May 2003

Relevant Zone: Residential (Map CoCo/6)

Date of Decision: 22 August 2003

Appeal lodged: 10 September 2003

5. A conference was held between the parties concluding on 10 November 2003, with no settlement reached.

6. Evidence to the Court was provided by Mrs Wilczek for the appellants, a lay person, who gave evidence regarding the rationale for the proposal and its siting, and of the siting and appearance of other similar garage outbuildings in the North Beach settlement (refer Exhibit A1). Mr D Hutchison, MPIA, a qualified and experienced consultant town planner, who has been providing such services to this Council or its predecessor for some 11 years, also provided evidence as set out in Exhibit R2 and orally.

7. The Court viewed, in the presence of the parties, the subject land and the locality on Friday, 19 December 2003.

Subject Land

8. The subject land is contained in Certificate of Title Volume 5632 Folio 289 and comprises Lot 60, DP 6222. The land has a frontage to Woodforde Drive of 18.29 metres, depth of 38.10 metres and a site area of some 697 square metres.

9. The land is well described by Mr Hutchison in Exhibit R2 and with structures generally as set out on the site plan in Exhibits A1 and R1, with the dwelling setback approximately 22 metres from the street frontage. A small existing shed of approximately 7 square metres is sited near to the front boundary and it is to be demolished as part of the proposal. There are no trees of substance on the land or the adjoining road verge.

The Proposal

10. The proposal as shown in Exhibit R1 at pages 4-6 is as described by Mr Hutchison in Exhibit R2 at pages 3 and 4. The large triple-width garage of some 70.8 square metres is proposed to be setback 1 metre from the front and 1 metre from the western side boundary. It would be of 'Colorbond' metal cladding with colour not specified.

The Locality

11. The locality is that part of the surrounding area of direct influence on the subject land and that the proposal is likely to impact on, to a notable degree. For this matter, I find the locality should be based on visual considerations alone.

12. I generally agree with the locality definition of Mr Hutchison set out in Exhibit R2 at page 3. Whilst the broad character of the area would include the whole of North Beach, as submitted by Mrs Wilczek, the proposal only impacts on and is impacted by a much more localised area.

13. I also agree with the description by Mr Hutchison of the built form composition in the locality, noting also that there are some variations to the norm in terms of setbacks of structures, notably at 11 Woodforde Drive and on a site to the west, corner of Woodforde Drive and Ocean View Drive.

14. The area is residential in character and in particular of a holiday house settlement, and visual amenity levels are moderate, marred by much of the built form and absence of substantial vegetation, but enhanced by proximity to the coast and sea views.

Relevant Development Plan Provisions

15. I have considered the various provisions referred to by Mr Hutchison and counsel for the respondent and I find the following to be the relevant provisions in the Development Plan of 15 May 2003, for assessment of this specific matter:

COPPER COAST

DEVELOPMENT GENERALLY

Objectives: 1 and 2; and

Principles of development control: 1, 2 and 3(c).

APPEARANCE OF LAND AND BUILDINGS

Objective: 4; and

Principles of development control: 1 and 2.

RESIDENTIAL DEVELOPMENT

Objectives: 2 and 5; and

Principles of development control: 3(b), 6, 7(b), 9, 10(a)(c) and 21(a)(b)(g)(h)(j).

RESIDENTIAL ZONE

Objectives: 3(a)(b) and 5(b)(c); and

Principle of development control: 5.

MAP CoCo/1 (Overlay 1) and MAP CoCo/6.

Planning Assessment

16. In accord with case law as I understand it, noting there to be some variation, I have approached decision making in this matter mindful of the following:

•	considering the Development Plan as a whole and all relevant provisions to the matter in question;

•	considering the Development Plan as a flexible, advisory planning policy document, not as a mandatory, legal statute; as a practical guide for practical application, superimposed upon an existing state of development;

•	considering the merits of the proposal as a whole, the pros and cons (points of clear compliance with guidelines or departures from them) and the position that scarcely any proposal however good, is likely to meet every provision such that no legitimate objection can be taken to it;

•	considering the proposal in question and its alignment with the Development Plan, not comparing it with or testing it against other alternatives or a so called ideal design solution or planning outcome;

•	integrating the various criteria, reconciling inconsistencies between them and not considering them in isolation of each other;

•

distilling the overall intent, purpose and desired character of the Residential Zone sought to be achieved via the Development Plan and the context of the characteristics and facts about the locality and the subject land (both historical and current) as well as the proposal details and whether it is conducive to achievement of the desired character and amenity of the Zone; and

•

assessing the proposal on the above basis, balancing up all relevant considerations, including the evidence, what is seen on the view and the public and private interests, in determining, on a fact and degree basis in each case, whether the proposal is sufficiently in accord with the Development Plan to warrant consent.

17. I also agree that it is not the approach to find "poor examples" of development design in the locality and seek to rely on those aspects in the design of new proposals. However, it is relevant to consider the characteristics of all development including the so-called poor examples, in the locality context.

18. The visual appearance of the siting of the proposed garage outbuilding is the only issue for assessment, given the intent of Condition 5.

19. The most relevant and useful guidelines in the Development Plan in this regard are as follows:

"DEVELOPMENT GENERALLY

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

3	(c) create a safe, convenient and pleasant environment in which to live;

.....

APPEARANCE OF LAND AND BUILDINGS

.....

Objective 4: To encourage the design and siting of buildings and structures which minimizes their impact on views from public roads and places.

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

1 Development should complement the natural features of the land and general character of the land on which it is located.

.....

RESIDENTIAL DEVELOPMENT

.....

Objective 5: To preserve and enhance the character and amenity of residential areas.

.....

PRINCIPLES OF DEVELOPMENT CONTROL

.....

3	Within residential zones:

.....

(b) no development should be undertaken which would impair amenity or residential character;

.....

6 Development in residential zones should maintain the attractiveness of the area as a place in which to live.

7	Residential development should be designed and sited:

.....

(b) to provide for landscaping, including trees and shrubs, between any buildings and the street alignment;

.....

9 Development of buildings or structures should not cause nuisance to adjoining residents by way of glare, reflection, over shadowing, over looking or visual dominance.

10 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:

(a) large, blank or unarticulated walls facing an adjoining boundary;

.....

(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; and

.....

21 Domestic outbuildings, carports and garages should:

(a) not be of a size or in a location which results in their visual dominance of the dwelling to which they relate or the locality;

(b) be screened from public view so as not to detract from the appearance of public open spaces;

.....

(g) be no closer to a public road, or public open space, than the dwelling with which it is associated;

(h) have no solid wall located closer than 1.0 metre to a property boundary(not being a road);

....

(j)	be constructed of masonry or factory pre-painted cladding; and

.....

RESIDENTIAL ZONE

.....

OBJECTIVES

.....

Objective 3: A residential environment characterised by:

(a) safe and pleasant streets;

(b) maintenance of or improvement to residential amenity;

.....

Objective 5: A desired future character for the zone which is distinguished by:

.....

(b) open or low fenced front gardens which are extensively landscaped;

(c) retention and enhancement of the established character in areas which have a distinct and recognisable character and which have a high level of amenity;

....."

20. The proposed triple-width garage of 70 square metres is large for a residential outbuilding, on almost any measure, though it is similar to some others in the rear and side spaces about dwellings in the locality as defined.

21. The siting choice of the appellants, placing the proposed outbuilding in the large front yard area, is reasonable in the circumstances of the dwelling siting and very limited rear area better suited as private open space, and the relatively limited spaces to the side of the dwelling.

22. However, whilst the garage is to be 'side on' to the street with openings facing east, its proposed siting 1 metre from the front boundary only, and approximately 5 metres or more forward of the carport and dwelling to the west (with limited screening vegetation), and approximately 7 metres forward of the dwelling adjoining to the east (with no screening vegetation), is not acceptable based on the Development Plan guidelines.

23. The proposed 1 metre front setback is insufficient to establish adequate landscaping to minimise the obvious bulk and likely visual dominance of the proposed building on the locality, and visual impact on the streetscape of Woodforde Drive.

24. The siting required by Condition 5 is reasonable to ensure a generally consistent building line and less obtrusiveness of the structure in the streetscape; and to enable adequate area for a garden (Zone Objective 5(b)) and screen landscaping (Residential Development Principle 21(b)). An intermediate figure of perhaps 3-4 metres may be sufficient to achieve the latter, but not the former.

25. The issue of the potential consequences of the building siting on the location and on-going acceptability of the existing septic tank (and either its continuance undisturbed, or its re-siting and potentially its consequential upgrading), is not relevant to the planning assessment of the outbuilding structure. Similarly, the adequacy of areas remaining for private open space or play space for children, are not compromised on any scenario.

26. I have also had regard to the more onerous conditions applying to complying development in the Zone (Principle 5), namely an 8 metre setback from the road for a 40 square metre garage outbuilding. I have also not ignored the setback of older structures at 11 Woodforde Drive (3 allotments to the east), and of the dwelling and rear outbuilding (3 allotments to the west) on the corner site. They are not what are sought to be achieved in the Residential Zone and for residential development generally in the Council area, given the more recent Development Plan amendments providing much clearer policy guidance for future development. The proposal also will not enhance visual amenity as sought by the Plan.

Conclusions

27. The siting of the garage outbuilding as sought by the appellants is not acceptable having regard to several visual impact criteria in the Development Plan. In particular, I consider that the proposal does not meet or sufficiently meet, Appearance of Land and Buildings Objective 4 and Principle 2; Residential Development Objective 5 and Principles of Development Control 3(b), 6, 7(b), 10(c), 21(a)(b)(g); and Residential Zone Objective 3(a)(b) and Objective 5(b). As a whole, and acknowledging the locality characteristics, the proposed siting does not meet the Development Plan.

Decision

28. The decision of the Court is that the appeal against Condition 5 of the approval for a garage outbuilding (including removal of the existing shed), is dismissed and the decision of the Council confirmed.

29. There will be an order accordingly.