Nancy Giltrow v Ct of Walkerville & St Andrew's School Inc No ERD-79-2003 [2004] SAERDC 11 (30 January 2004)

Last Updated: 7 March 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Memorandum of Commissioner Mosel

Hearing

03/11/2003.

Representation

Appellant: NANCY VALERIE GILTROW
Counsel: MR J COSTELLO QC - Solicitors: WALLMANS SOLICITORS

First Respondent: CORPORATION OF THE TOWN OF WALKERVILLE
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Second Respondent: ST ANDREW'S SCHOOL INC
Counsel: MR B HAYES QC - Solicitors: MINTER ELLISON

ERD-79-2003

Judgment No. [2004] SAERDC 11

30 January 2004

NANCY VALERIE GILTROW

v

CORPORATION OF THE TOWN OF WALKERVILLE

and

ST ANDREW'S SCHOOL INCORPORATED

(ERDC No. 79 OF 2003)

[2004] SAERDC 11

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal is instituted against a decision of the Town of Walkerville ("the Council") to grant Provisional Development Plan Consent to a development proposed by St Andrews School Inc ("the School") involving:

(1) The conversion of existing tennis courts at the rear of the Uniting Church at 17 Smith Street, Walkerville ("the Church") to a car park to be used jointly by the School and the Church;

(2) The removal of seven car parking spaces located on School land immediately to the south of the Church and the conversion of that land to play space; and

(3) The removal of 12 car parking spaces used by administration staff and the conversion of the land to play space.

2. The School is a large primary school. It has 585 students and has been in existence for 152 years. As a consequence of progressive expansion, the School is split into two components or campuses. The eastern and western campuses are separated by Smith Street. The proposals itemised in (2) and (3) above are located in the eastern and western campus respectively. The Church and the land upon which the car park will be established referred to in (1) above is adjacent the amenities facilities on the eastern campus.

3. The application was submitted to the Council on 20 December 2002. It was treated as a Category 3 development. The appropriate notification was issued in due course and three representations were received. Ms Giltrow was among those who lodged a representation.

4. On 10 February 2003 the Council granted consent to the proposed development. In all, 15 conditions were imposed. Ms Giltrow, who resides on land adjoining the proposed car park referred to in (1) above, was aggrieved with the Council's decision and appealed to this Court under s86 (i)(b) of the Development Act 1993.

5. The proposed development is set out in plans prepared by Swanbury Penglase, which plans are contained in Exhibit R1 and numbered 02193/SK01, 02193/SK02 and 02193/SK03A. At the commencement of the hearing, an amended car park layout/landscaping plan (02193/SK05) was tendered as Exhibit B.

6. The following are salient features of the proposed development and other relevant circumstances:

• in its modified form, the proposed car park referred to in (1) above will accommodate 30 vehicles. 19 car parking spaces will accommodate the vehicles displaced as a consequence of the development itemised in (2) and (3) above. The net gain in spaces will assist but not cure the deficiency in car parking facilities available to the school;

• the land upon which the proposed car park is to be located is depicted on Certificate of Title Volume 5270 Folio 153. It is "landlocked" since it has no frontage to a public road. At the time the application for development was submitted, the land was in the ownership of The Uniting Church in Australia Property Trust (SA). The transfer of this land to the School has not been finalised;

• the proposed car park is situated at the rear of the existing Uniting Church. By virtue of Development Application Nos. 200/206/02 and 200/193/03 the building at the rear of the Church is to be modified to enable vehicles to move to the new car park from Smith Street;

• processes are underway to grant to the School a right-of-way from Smith Street through the land occupied by the Church to the car park;

• the proposed car park will be used primarily for the staff of the School. However, a draft Land Management Agreement ("The Agreement") accompanied the development application. The agreement intends the car park be shared with the Uniting Church outside of normal school hours. Condition 2 of the Provisional Development Plan Consent refers to the agreement;

• the proposed car park shares a boundary with the eastern campus of the School. It is presently used as sports courts. The School has had use of the courts (under lease) for its students for 10 years. Before then it was used, sometimes extensively, for netball under the banner of the Uniting Church. Pedestrian access is available to the courts from the School. The proposed development retains and improves the access;

• the existing high light poles will be removed from the courts. The proposed car park will be lit by low-level lights. The fence along the northern and a portion of the eastern boundary will be modified;

• Ms Giltrow occupies a dwelling on land adjoining the eastern boundary of the proposed cark park. The nearest part of her dwelling is about 8-10m from the common boundary. The small rear yard is a particularly attractive feature of her home;

• the existing car park referred to in (3) above is located on the western campus of the School. It is accessed from Short Street. There appears to be inadequate parking facilities to properly cater for administration staff;

• the character of the locality is mixed having within it residential, educational and community land uses. The amenity is reasonably high but affected by the high traffic volumes in Smith Street and the general rowdiness that characterises a primary school; and

• the 4 July 2003 version of the Walkerville (CT) Development Plan is relevant.

7. The conversion of the existing tennis courts into a car park for 30 vehicles is the contentious aspect of the proposed development. Having given careful consideration to the submission of Mr Costello (for the appellant), Mr Leydon (for the Council) and Mr Hayes (for the School) I have concluded that, properly characterised, it is a car park. It is not a school and it cannot be characterised as such or as an expansion of St Andrew's School. (Papadopoulos v Corporation of the City of Woodville [1985] 39 SASR 569). Granted the land has become part of or absorbed into the School's recreation facilities over the last 10 years. However, what is proposed is for the parking of motor vehicles. It will be accessed by vehicles through a corridor quite independent of the School and by virtue of the conditions imposed by the Council, it is to be used as and will remain a car park. That said, it is not a car park for general public use. The land will be in the ownership of the School and, although its use will be shared with the Church, it will be used primarily by and for the benefit of the School. Although the car park cannot be characterised as an expansion of the School, its presence and use will alter to some extent the way the School presently functions.

8. The proposed development is situated in two zones identified in the Development Plan for the Town of Walkerville ("the Plan"). Those aspects of the development itemised in (2) and (3) above are within the Education Zone and Policy Area 14 (St Andrews School). That part of the proposed development described in (1) above is within the Residential Zone and the Area 8 - Walkerville Central Policy Area.

9. With respect to those aspects of the proposed development within the Education Zone, Objectives 1 and 2 and Principles 1, 2, 6, 7, 8, 11 and 14 are the most relevant in the assessment. The general thrust of the policy content in these provisions is to accommodate education and associated uses of land and guide development with the following effect (relevant to the issues in these proceedings):

• attractive landscaped areas;

• minimisation or avoidance of on-street parking on roads and land within and outside of the zone and the improvement in conditions of traffic safety generally;

• traffic being directed to roads more suited to the vehicles generated by education uses thus minimising nuisance to adjacent residential land; and

• development confined to the eastern campus except for development which rationalises and does not intensify activities on the western campus.

10. Having carefully considered all relevant provisions I have concluded that the developments described in (2) and (3) above are generally consistent with the aforementioned provisions. The removal of the existing car parking spaces from the western campus will, to some extent, relieve the on-street parking problems that apparently occur in and around Short Street. Furthermore, the area of land so released from parking purposes will be landscaped. Whether those provisions which seek to avoid parking on the land outside the Education Zone (Principle 6) are adequately satisfied will be determined by the extent to which the new car park adequately conforms with the provisions of the Residential Zone and Area 8 and the relevant Council Wide and Metropolitan Adelaide provisions of the Plan. The evidence of Mr Burns, Ms Atkinson and Mr Smith all being experienced and qualified planners support this conclusion.

11. I turn now to the new car park. There are a few issues that can be disposed of quickly. During the course of the hearing the planning witnesses were on common ground in respect of the capacity of the proposal to comply with the provisions dealing with landscaping. From my examination of Exhibit B, I am inclined to agree but note that certain aspects of the landscape design and species selection needs attention.

12. Furthermore, I am satisfied that the internal arrangements of the car park meets all reasonable design criteria for safe and convenient movement and manoeuvrability. Exhibit C is in the nature of a report from Mr Paul Simon, a technical specialist in road safety and traffic. Its content indicates substantial compliance with relevant Australian Standards. Any departure from the standards, in Mr Simon's view, can be addressed during the detailed design phase. Mr Simon's report was not seriously challenged.

13. When all of the relevant provisions of the Plan are considered along with the evidence and submissions I have concluded that the appropriateness of the car park, used as intended, will be determined by the assessment of the following principal issues (the most relevant provisions of the Plan in parentheses):

• the extent to which the design, functional arrangements and intended use of the car park conflicts with the existing and desired amenity and character of land in its near vicinity (Residential Zone Principle 4, Area 8 Principle 1, Council Wide Objectives 4, 5, 8 and 25 and Principles 3 and 64 and Metropolitan Adelaide Objective 43); and

• the extent to which the proposed car park used jointly by the School and Church represents an orderly use of land within the Residential Zone and otherwise represents a use of land sufficiently in accord with the purpose and intent of that Zone (Metropolitan Adelaide Objective 1, 2 and Council Wide Objectives 1, 2 3 and 4).

14. Such an assessment should take into account, as it has, the provisions for car parking in Council Wide Objective 15 and Principle 27 and, to the extent relevant, the provisions of Zone Principle 8. Also a factor for consideration is the existing use of the land as sports courts associated with the School and, for many years previously, the Church.

15. The land in the near vicinity of the proposed car park has a mixed character. To the north and northeast, residential development features strongly. To the west is the Church and a major traffic corridor (Smith Street). To the east and south are respectively, the sports fields and (eastern campus) school buildings. The amenity of the locality is influenced by the (mainly daytime) noise from the School and traffic along Smith Street and Fuller Street. That said, the visual amenity of the buildings to the north (within which area Ms Giltrow resides) is high.

16. The following factors are for consideration when assessing the impact on the character and amenity of the locality:

• the car park cannot be viewed from Ms Giltrow's residence, nor the residence immediately to the north. In effect it will not be seen from Smith Street or Fuller Street;

• the large elevated floodlights will be removed and replaced by low-level bollard type illumination;

• on a daily basis the car park will be used by teaching and administration staff. Although no evidence was given on the point, a total vehicle movement of between 60 - 70 per day could be expected most likely to be concentrated and split between 8am and 9am and between 4:30pm and 5pm;

• the car park design will ensure a low speed environment. Security measures will be in place to ensure use by authorised persons;

• the use by the Church, it appears to me, enables the continuation of current functions;

• night time use by the School is likely to be on 20 occasions per year to a time no later than 10pm; and

• about 20m of the existing eastern boundary fence (in part, common with Ms Giltrow's land) will be raised in height and enhanced with lattice screening.

17. By any reasonable measure, the proposed car park will not impair the amenity now enjoyed by Ms Giltrow or other neighbours. For most of the day it will be relatively passive use of land. All experts agree that it will not be visible from neighbouring properties nor will the noise of vehicles exceed appropriate standards when reasonably applied. Night time usage will be few and far between. By virtue of an agreement between the Church and School the use by the Church will be restricted to 10 spaces. Although the usage by the Church indicated in the Agreement is a little open-ended, I have concluded that little, if any, amenity consequences will follow. That said, the Agreement which, according to the documents available to the Court has yet to be executed, is not an instrument to which this Court should have regard other than to accept the times referred therein as forming part of the proposed use of land.

18. I have further concluded that no serious conflict arises in respect of the character of the locality. I have noted previously that it is an area of mixed character and includes the types of facilities normally served by car parks. The land is now a use associated with the two major exiting non-residential uses and, as a consequence of the proposal, that will continue to be the case.

19. In reaching these conclusions I have also taken into account Mr Burns' concern that the main impact will arise from the (negative) 'perception' that the land is now a car park associated with the School and not a residential use or a use primarily associated with the Church. I acknowledge that the concept of amenity is not always capable of precise evaluation. It might include such intangible concepts as a concern about the erosion of principles established for the planning of an area or an anxiety or fear about the security of an area. However, this Court has exercised caution when presented with evidence of this nature preferring instead to place greater weight on those aspects of amenity, which are measurable and capable of being assessed against recognised standards (see for example Telstra Corporation v Mallala DC [2002] SAERDC 50). In my view there is little if any, to support Mr Burns' opinions.

20. Now to the purpose and intent of the Residential Zone and the orderly use of land. There are four objectives for the Residential Zone which are expressed thus:

"Objective 1: A zone primarily accommodating dwellings of various types, sizes and tenure at low- and medium-densities and of low-rise form.

Objective 2: Medium-density residential development located in accord with the specific policy area provisions.

Objective 3: Development designed in context with the positive features of the locality and in accord with the specific area provisions.

Objective 4: The maintenance of cohesive residential communities supported by compatible local community, recreational, educational and other facilities."

21. The "strategic intent" of these Objectives are reinforced, in the main by Principles 1, 2, 8 and 9. However, future development is also guided by the text following these objectives which notes that within the zone "there are considerable variations in characteristics between localities". It further notes that "careful attention to local factors and attributes is necessary in the design of future residential development".

22. There are six principles for Area 8 - Walkerville Central. Principle 1 is the most relevant and is expressed thus:

"Development should complement the existing blend of late 19th century, pre- and post-war era building styles having regard to localised variations. New development should utilise traditional elements in a contextual manner."

23. Ms Atkinson and Mr Smith both opined that while the principle policy thrust for the Zone is to permit residential development, support for the new car park could be found in Objective 4 and Principle 1. Both agree that the purpose, nature, size and scale of the car park would neither offend the general policy thrust nor the design criteria in Principle 4 and the relevant criteria in Principle 8 (to the extent that this Principle applies).

24. Mr Burns disagreed with their views. He considered the proposed use to be, in effect, an extension of the School. It is on that footing that he opined that it offended Principle 8. Further, he characterized the proposal akin to a public car park and for these reasons concluded that it represented a use not contemplated in the Zone. Principle 8 reads as follows:

" Further development of primary schools or pre-schools or other educational facilities providing a local service, should occur within existing sites used for such purposes...."

(Emphasis added)

25. I have said above the proposed use is properly characterized as a car park. It is not in the nature of a "primary school or other educational facilities" as spoken of in Principle 8. Therefore, I do not think that principle applies. However, many of the design guidelines therein would be generally applicable when assessing a proposal for a car park adjacent to dwellings. The overall question is whether the proposed use is at odds with the policy thrust for the Zone to an unacceptable extent? Factors for consideration are as follows:

• the land is surrounded on three sides by non-residential activities which, for all intents and purposes, is likely to be the case for many years to come;

• without the benefit of formal rights of way which will be occasioned by the proposal, the land is land-locked and generally unsuited to independent development for residential purposes;

• all traffic generated by the car park is directed to a traffic corridor most suited to the circumstances; and

• the car park will, in the end, reduce the incidence of on-street parking and thus impart benefits to many dwellings within that locality.

26. Overall I have concluded that the land is not conveniently placed for, nor are the circumstances conducive to a use of land that would be in accord with the principal policy objective which supports residential development. I am reinforced in taking this approach by the terms of that part of the text supporting the objectives which advocates "careful attention" being given to "local factors and attributes" when designing future residential development. Furthermore, the presence of the car park shared between the Church and the School would be of some assistance in supporting the community and education facilities referred to in Objective 4 and Principles 1 and 2. In the end the proposed car park is an orderly and proper use of land in the circumstances.

27. Having considered all that has been put before me, I am satisfied that the decision of the Council to grant consent to the proposed use was correct. However, I am not satisfied with Condition 2. The use of the car park by the Church has been put to the Court as an essential feature of the proposed use of the land. It is not appropriate for the Court or any planning authority to impose a condition requiring the finalisation of the Agreement for the purposes of defining and or limiting the use of land for which application has been made.

28. By Memorandum dated 20 November 2003, I advised the parties of my conclusions above and invited them to put further submissions to me regarding:

(a) The most appropriate way of incorporating the intent of Condition 2 into the consent; and

(b) The conditions generally having regard to the evidence of Mr Burns.

29. On the resumption of the proceedings, Mr Leydon handed to the Court a draft list of conditions which incorporated particular amendments arising from the detail in Exhibit B. Mr Allen sought to have clarified in the condition particulars of the intended use of the car park by the School as further defined in evidence. He also sought to have particularised matters in Condition 2 that were vague and uncertain. Ms Bradsen received instruction from the Church regarding its intended use during weekend periods.

30. I have amended the draft list of conditions in a manner consistent with all that was put before me in the proceedings. The decision of the Council is confirmed subject to the conditions as itemised below.

31. The Court hereby orders that Provisional Development Plan Consent be granted for:

(1) The conversion of existing tennis courts at the rear of the Uniting Church at 17 Smith Street, Walkerville ("the Church") to a car park to be used jointly by the School and the Church;

(2) The removal of seven car parking spaces located on School land immediately to the south of the Church and the conversion of that land to play space; and

(3) The removal of 12 car parking spaces used by administration staff and the conversion of the land to play space.

Development Application No DA200/207/02 subject to the following conditions:

1. Development is to take place in accordance with the plans marked 02193/SK01, 02193/SK05 (Exhibit B) and 02193/SK03A prepared by Swanbury Penglase relating to Development Application No DA200/207/02, except as modified by any conditions attached to this Planning Decision Notification, and all works detailed in the approved plans and required by conditions be completed prior to the occupation of the development approved herein.

2. Subject to Condition 3, the car park shall:

2.1 be for the use of the staff and visitors to the St Andrew's School;

2.2 not be used for the set-down or pick-up of students; and

2.3 be available for use between 7:30am and 7:00pm except for 20 occasions in any year when the car park may be used no later than 10:00pm.

3. The applicant shall reserve, for the Walkerville Uniting Church (for as long as the Church retains at its Smith Street church the function of a community facility for the purposes of the Development Plan) the use of a minimum of 10 car parking spaces on the subject land for parking of motor vehicles:

3.1 on Sundays before 1:00pm;

3.2 on Christmas Eve, Christmas Day and Good Friday;

3.3 on weekday evenings after 7:00pm, for a maximum of four evenings per week except on those evenings when the applicant requires the car parking; and

3.4 on weekends for weddings, funerals and fellowship nights of which there shall be no more than 15 each year.

4. The applicant shall take all reasonable measures to ensure the car park is:

4.1 used strictly in accordance with this consent; and

4.2 locked and secured when not in use.

5. A detailed landscaping plan generally in accordance with the planting scheme in Exhibit B shall be prepared and implemented to the reasonable satisfaction of the Council. The establishment of all landscaping shown on that plan shall be completed prior to the occupation or use of the development herein approved and shall be maintained in good health and condition at all times to the reasonable satisfaction of Council. Any dead or diseased plants or trees shall be replaced to the reasonable satisfaction of Council.

6. The 400mm high lattice extension to the existing fence shown on Exhibit B shall:

6.1 be constructed on the existing fence along eastern boundary only; and

6.2 extend along the aforementioned fence a distance of 15 metres from the intersection of the northern and eastern boundaries of the car park.

7. Each car parking space shall conform to the applicable Australian Standard. Such car parking spaces shall be line marked with continuous white lines along the whole of each side of each car parking space prior to the use of the development herein approved and such line marking shall be maintained in good and substantial condition at all times to the reasonable satisfaction of the Council.

8. The car parking space in the southwestern corner of the new car park shown on drawing 02193/SK05 dated 31 October 2003 shall be designed and designated for the use of persons with disabilities and marked accordingly.

9. The existing car parking space to the northeast end of Short Street on drawing 02193/SK03A shall be constructed as a parking space for the use of persons with disabilities and marked accordingly.

10. All fences and walls abutting the car park shall be protected by wheel stops to prevent damage by vehicles.

11. A directional sign not exceeding 0.5 square metres in face area shall be erected at the entrance of George Street on land owned by St Andrew's School, to indicate the location of staff and visitor parking for St Andrew's School. Also a directional sign, not exceeding 0.5 square metres in face area, shall be erected at the entrance to the new car park directing use by staff/visitors only and that pedestrians crossing Smith Street shall utilise the overpass.

12. All existing light towers along the northeast boundary shall be removed prior to the commencement of use of the hereby approved development (four [4]) in total).

13. Any flood lighting shall be designed and located in such a way that adjacent properties are not adversely affected by glare or light spillage.

14. Stormwater shall be managed and disposed of in such a manner so as not to adversely affect any adjoining property by the creation of an on-site detention system and/or directing such water to the street watertable to the reasonable satisfaction of Council. A pressurised system shall be used if levels are inadequate for a gravity-feed system.

15. The car park shall be designed, paved and drained to direct all stormwater run-off through a suitable pollutant trap to filter pollutants form such water before entering the Council stormwater system, to the reasonable satisfaction of the relevant authority. The design and details of such drainage and filter shall be submitted with plans of building rules consent.

16. Any difference in finished ground levels between the subject site and adjoining sites at the boundary be retained by an appropriate wall or plinth of masonry, concrete, new concrete sleeper or similar construction structurally separate from any boundary fence and its supports.

17. The Short Street playground construction and disabled parking space reflected in drawing 02193/SK03A shall not proceed until a survey of the Short Street boundary is conducted by a qualified surveyor to accurately determine the boundaries of the subject land and until such time as the new car parking facilities at 17A Smith Street are completed. In the event of any discrepancy between the survey and the approved plans the matter shall be referred to the planning authority prior to commencement of any development.