Mccracken Homes v Alexandrina Council No ERD-03-381 [2004] SAERDC 29 (8 April 2004)

Last Updated: 11 April 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Hodgson

Hearing

09/02/2004 to 10/02/2004, 15/03/2004.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - Applicant appeal against refusal of application to demolish existing dwelling and construct five group dwellings - Residential Zone - character of locality - acceptability of proposed density of development - locality already exhibits rise of densitites - proximity to town centre relevant consideration - with minor amendments, design and siting of proposal consistent with relevant provisions of Development Plan - appeal upheld and Provisional Development Plan Consent granted, subject to conditions.

• Development Act 1993 , referred to.

Representation

Appellant: MCCRACKEN HOMES
Counsel: MR J HILDITCH - Solicitors: HUNT & HUNT

Respondent: ALEXANDRINA COUNCIL
Counsel: MR P BRODERICK - Solicitors: LEMPRIERE ABBOTT MCLEOD

ERD-03-381

Judgment No. [2004] SAERDC 29

8 April 2004

McCRACKEN HOMES

v

ALEXANDRINA COUNCIL

(ERDC No. 381 of 2003)

[2004] SAERDC

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against the decision of the Alexandrina Council ("the Council") to refuse five related applications by McCracken Homes ("the Appellant"), which applications sought provisional development plan consent for the demolition of an existing dwelling and the construction of five group dwellings on land at 17 Chrystal Street, Goolwa.

The Land and Locality

2. The subject land is known as 17 Chrystal Street, Goolwa and is more particularly described as Allotment 152 in Certificate of Title Volume 5642 Folio 432. It has a frontage to Chrystal Street of 32.18m and a depth of 65.74m, producing a total site area of 2,115.5m2. On the land is located a modest detached dwelling and out buildings, all in relatively poor condition.

3. A number of mature trees are located on the land, none of which, on the evidence, is classified as significant. The land is virtually flat, with a driveway crossover located adjoining the northern corner of the site.

4. The subject land is bounded by a detached dwelling to the south-east, and vacant land to the north-west. To the south-west, facing Brooking Street, are detached dwellings, while other detached dwellings are situated on the opposite side of Chrystal Street.

5. Two expert planners gave evidence in this matter, Mr G Heynen and Mr F McIntyre. There was a fair measure of agreement between the two as to the relevant locality, both including land on either side of Chrystal Street a short distance north-west and south-east of the subject land, and land to the south-west facing Brooking Street. Mr Heynen's locality extended slightly further south-west and did Mr McIntyre's, taking in dwellings on the south-western side of Brooking Street as well as those on the north-eastern side. Mr McIntyre, in evidence, conceded that, as a view could be obtained of the subject land from dwellings on the south-western side of Brooking Street, a locality which took in at least the front portion of the dwellings on that side of Brooking Street was appropriate. Although little turns on the difference between the two localities, I have adopted the locality defined by Mr Heynen.

6. The subject land, on the evidence of Mr Heynen, is some 230m from Cadell Street, the main street of Goolwa. It is located within the Residential Zone, which is depicted on Map Alex/62 in the Development Plan for the Alexandrina Council dated 29 May 2003. The boundary of the District Centre (Goolwa) Zone runs along Loveday Street, which is parallel to and immediately south-west of Brooking Street, and is 155m from the subject land.

7. The locality contains a mix of development, including large vacant allotments and single-storey detached dwellings on large allotments, but there is also evidence of recent infill development occurring at higher densities. The evidence of Mr Heynen, which was not disputed, was that the following approvals had recently been granted for sites within 80m of the subject land:

• six group dwellings at 34 Brooking Street with an average allotment area of 347m2;

• land division creating three allotments at 40 Brooking Street, with an average allotment area of 440m2; and

• land division for three allotments and the retention of an existing dwelling at 2 Moore Street, with an average allotment area of 315m2.

The Proposal

8. The proposal entails the demolition of the existing dwelling on the subject land and the construction of five group dwellings, two of which would have a frontage of Chrystal Street, and three of which would be sited at the rear of the land, between 4.2m and 7.8m from the rear boundary. The average allotment area for the development (based on apportionment of an equal component of the common driveway) would be 423m2, and overall site coverage 37.64%. The common driveway would provide access to the three dwellings to the rear, while separate crossovers and driveways would provide access to the two dwellings facing Chrystal Street. The three driveways would be separated by two landscaped areas 6.2m wide by 4.8m deep.

9. The front dwellings (Dwellings 1 and 2) would be set back 6.0m from Chrystal Street, and have side setbacks respectively of 0.6m and 0.632m (garage) and 3.6m and 3.7m (remainder of dwellings). Dwellings 1 and 2 would have a total floor area of 187.49m2 comprising a double garage, four bedrooms, formal lounge and combined kitchen/family/meals area. Each would have private open space of 113.43m2 adjoining the primary daytime living areas, and be set back 5.2m from proposed rear fences. Each dwelling would be single-storey, with brick walls, Colorbond roofing at a 25° pitch, panel lift garage doors, and brick corbelling to provide some visual interest.

10. The rearmost dwellings (Dwellings 3, 4 and 5) would also be single storey, and utilise similar materials to Dwellings 1 and 2. Dwellings 3 and 5 would be identical in design and comprise three bedrooms and an open plan area including kitchen, family and meals. Each would have a single garage. Floor areas would be 138.61m2 and private open space 80.77m2 for Dwelling 3 and 79.66m2 for Dwelling 5. Dwelling 3 would be set back 1.3m from the outer side boundary, and Dwelling 5, 1.044m. Both would be set back 1.16m from the boundaries shared with Dwelling 4, except for the garages, which would be sited on that boundary. Rear boundary setbacks would be 7.8m.

11. Dwelling 4 would have a floor area of 183.21m2 comprising four bedrooms, formal lounge, open plan kitchen and family/meals area, and a double garage. The setback from the rear boundary would be 4.2m. Elevational treatments would be similar to Dwellings 1 and 2.

12. Landscaping would be provided along the perimeter of the common boundary for Dwellings 3, 4 and 5, that driveway being 36m in length, the landscape area being obtained by reducing the driveway width from 6.0m between the front boundary and Dwellings 1 and 2, to 4.5m for the remainder.

13. No details regarding fencing or landscaping were provided.

Assessment

14. As I have said, the subject land is situated within the Residential Zone. The sole objective for that zone is as follows:

Residential Zone

"Objective 1: A zone primarily accommodating a range of dwellings, together with appropriate community uses complementing the permanent and the holiday accommodation requirements of the urban coastal area."

15. Relevant zone principles are as follows:

"Principle 2: Buildings should not exceed 8.0 metres in height and should not cover more than 50 percent of the area of the allotment."

"Principle 7: Development should include sufficient provision for vehicular access which will not unduly affect the amenity of the locality, cause nuisance to any person or adjacent development, or interfere with the free flow of traffic in adjacent streets."

"Principle 8: Development should be compatible with the character and amenity of the locality."

"Principle 9: Buildings and structures should be of a high standard of design with regard to external appearance, building materials, colours, siting, bulk, loss of privacy, overshadowing, landscaping and provision for future maintenance."

16. Group dwellings, being listed neither as complying nor as non-complying development within the Residential Zone, fall for consideration against the relevant provisions of the Development Plan.

17. The evidence of Mr Heynen was that the proposal was consistent with the relevant provisions of the Development Plan. Features of the proposal demonstrative of that consistency included:

• the appropriateness of group dwelling developments within the Residential Zone generally, but in particular, in close proximity to the town centre;

• the consistency of the site areas proposed with site areas evident in the locality;

• the relatively low site coverage proposed, the distance between each dwelling and proposed boundary setbacks;

• the suitability of the single-storey dwelling form and elevational treatments;

• the capacity of the development to connect to the common effluent drainage scheme;

• the provision of safe and convenient access;

• the provision of adequate carparking for occupants and visitors; and

• the preservation and enhancement of the streetscape and the amenity of the locality.

18. The evidence of Mr McIntyre was that "in pure land use terms", the use of the subject land for group dwellings was appropriate. However, referring to Zone Principle 8 and to a number of Council Wide Development Plan provisions directed towards the retention of the character and amenity of localities, Mr McIntyre concluded that the proposal did not demonstrate sufficient conformity with those provisions to warrant consent. Mr McIntyre summarised his views thus:

"• the proposed buildings are inappropriately designed and sited and do not complement the dwellings in the locality, will be visually intrusive and will detract from a character and visual amenity of the locality;

• the proposal will result in a density of dwellings that will be out of character of [sic] the existing built form in the locality; and

• will result in the sealing of large areas of ground likely [sic] to result in increased stormwater runoff."

19. Specific aspects of the proposal which, in Mr McIntyre's view, rendered it inappropriate within the locality included:

• the proposed setback of 6.0m, by comparison with that of the adjoining dwelling to the south-west, which was 12m;

• the minimal setbacks from side boundaries proposed;

• the limited private open space provided to each dwelling, by comparison with existing development;

• the dominance of driveways and paved surfaces which would result from the proposal; and

• the manifestly higher density of development on the subject land by comparison with neighbouring land.

20. As a consequence of these perceived failings the proposal was, in Mr McIntyre's view, in conflict with Council Wide Objective 29 and Principles 59, 86, 134, 139 and 143, Port Elliot and Goolwa Principles 43 and 78 and Zone Principles 8 and 9.

21. The views expressed by Mr McIntyre were reinforced by Mrs S Pearce, who resides to the immediate south-east of the subject land, and Mrs L Sims, who resides opposite the land, both of whom gave sworn evidence. In their view, the manifestly higher density which would result from the proposal proceeding would impact adversely on the existing low density character of that part of Chrystal Street north-west of Fenchurch Street, primarily as a consequence of smaller than usual setbacks to front and side boundaries, limited landscaping, large areas of paving, and higher volumes of traffic. Mrs Sims was also concerned about the lights of vehicles exiting the common driveway shining into her home, and Mrs Pearce about potential issues of privacy along the common boundary between her property and the subject land.

22. In its reasons for refusal, the Council referred to two provisions of the Development Plan with which, in its view, the proposal conflicted. Those provisions were Council Wide Principle 9 and Zone Principle 8. Council Wide Principle 9 is directed towards the division of land, and is in the following terms:

"9. The minimum allotment area within the townships of Goolwa, Port Elliot, Middleton and Mount Compass should generally be 1000 square metres and the minimum road frontage 25 square metres (except at the ends of cul-de-sacs). A smaller number of allotments from 560 to 1000 square metres may be appropriate within the townships of Goolwa, Port Elliot and Middleton where satisfactory provision be made for sewage disposal and existing allotments are of such a size."

23. Inasmuch as the proposal sought Provisional Development Plan consent for the proposed use of the subject land, and did not seek land division consent (a separate application was made subsequently, seeking Torrens Title for Dwellings 1 and 2, and Community Title for Dwellings 3, 4 and 5) it is arguable that Principle 9 has no relevance to these proceedings. I accept, however, as was submitted by Mr Broderick for the Council, that it is relevant to the extent that it gives some broad indication of the desired density of residential development within the township of Goolwa. That said (and leaving aside the lamentable drafting of Principle 9), it is clear, from an examination of the locality and the surrounding area more generally, that Council has not regarded 560m2 as indicative of the acceptable lower limit for allotment sizes in that locality and area, having recently approved a number of new allotments ranging in area from 345m2 to 440m2, and several group dwelling developments with average site areas/dwelling of 347m2 and 343m2 respectively.

24. Mr Broderick submitted that, while there had certainly been a number of relatively small allotments created in Brooking Street (which fell within the locality defined by both planners), that part of Chrystal Street north-west of Fenchurch Street, and, more particularly, that part within the above locality, had not been subject to further land division, and was characterised by large allotments similar in size and configuration to the subject land. Inasmuch as the zone objective sought a range of dwelling types, it was open to the Council to seek to retain the existing low density of development characterising the north-western end of Chrystal Street, rather than see the entire locality progressively developed to high densities.

25. The Residential Zone is a very large zone, covering most of the residential areas of Goolwa, Port Elliott, and Middleton. Accepting that there is an intent, expressed in the zone objective, to accommodate a variety of dwelling types within that zone, it is to be expected, in accordance not only with established town planning wisdom but also with market preferences, that higher density developments, such as that here proposed, will be located close to town centres and within walking distance of a range of shops and community services. The pattern of development which has occurred recently, not only within the locality but more generally within that part of the Residential Zone close to the Goolwa Town Centre, is consistent with this approach. The range of dwelling types sought by the zone objective cannot realistically be achieved on the basis that every locality will accommodate the full range, from highest to lowest density. Some localities, because of their proximity to centres, will prove both intrinsically suitable and commercially attractive for higher density development, just as others, because of their remoteness from centres, will be attractive for lower than average density development, such as rural living.

26. The absence, from the Development Plan provisions for Goolwa, of more detailed and specific directions in relation to the preferred location for higher density residential development is likely to result in continuing conflict between aspiring developers and existing residents, conflict which could largely be avoided if there was a clearer designation in the plan of those areas within which higher density development is anticipated and encouraged, and those in which it is not.

27. That part of the Residential Zone in Goolwa which lies between the boundary of the District Centre (Goolwa) Zone and the railway corridor, a short distance to the north-east of Chrystal Street, has clearly been subject to higher density development in recent years. Some of that development has occurred in close proximity to the subject land, and within the locality defined by both planners who gave evidence, albeit that it has not thus far occurred in the north-western portion of Chrystal Street. The character of the locality is now defined by a mix of dwelling types and allotment sizes, and in that context, the use of the subject land for group dwellings does not, in my view, conflict with the very broad land use provisions applying to the Residential Zone.

28. I turn now to consider whether the proposal, while appropriate in land use terms, is designed and sited such that it will satisfy those provisions of the Development Plan directed towards achieving a harmonious relationship between new and existing development.

29. In this regard, Mr McIntyre had a number of specific criticisms of the proposal, these concerning:

• front and side setbacks;

• limited private open space;

• the dominance of driveways and paved surfaces; and

• the visual impact of a density of development on the subject land considerably higher than that on adjoining land.

30. There is little doubt that the proposal will have the appearance of medium rather than low density development. However, in a locality characterised by a range of dwelling types and densities, and in a zone seeking a range of dwelling types, a contrast between the density of development on the subject land and that on some nearby allotments is to be expected.

31. With reference to side setbacks, the Development Plan prescribes a minimum side setback of 1.0m for a complying detached dwelling and 3.0m for a residential flat building in the Residential Zone. No other side setbacks are prescribed. The dwelling on the south-eastern side of the subject land is sited about 10m from the common boundary with the subject land, and the land to the north-west is vacant. In all the circumstances I consider that the proposed side boundary setbacks are acceptable.

32. No minimum area of private open space is prescribed in the Residential Zone. The areas proposed, as Mr McIntyre acknowledged, exceed the minimum areas suggested in the Planning Bulletin issued by Planning SA on Residential Policy. For the same reason that I have concluded that the overall density of the proposal is acceptable, I am satisfied that proposed areas of private open space are also acceptable.

33. The amount of paving required to allow access to all five dwellings will again produce an appearance which contrasts with low density development nearby. However, as Mr Heynen observed in evidence, it is not uncommon, on sites of this depth, for garaging to be sited at the rear, accessed by a lengthy driveway. In that sense, the central access driveway does not represent a significant departure from what could be expected if the land was redeveloped with a single dwelling. Proposed landscaped areas, provided suitable trees and shrubs are chosen, will serve to soften paved areas. Overall, I am satisfied that the extent of paving which will be visible on the subject land does not bring the proposal into conflict with those provisions of the Development Plan cited by Mr McIntyre.

34. There are, however, aspects of the proposal which require further consideration. Port Elliot and Goolwa Principle 78, in conjunction with Table Alex/2, prescribes a front setback distance of 8.0m, subject to a number of possible exceptions, the most relevant of which refer to development which is able, notwithstanding non-compliance with that setback distance, to harmonise with existing development. The setback of Mrs Pearce's dwelling, to the south-west of the subject land, is 12.0m. Other setbacks in the street are substantial. That being the case, I am not satisfied that the 6.0m setback proposed is sufficient, and consider that the proposal should meet the 8.0m requirement. The evidence of Mr Heynen was that this could be achieved by a reduction in the floor area of Dwellings 1 and 2, without reducing the private open space available to any of the proposed dwellings.

35. A second issue of concern is the absence of any detail concerning colours and finishes for the proposed dwellings, or of landscaping. Both should be provided, failing which conditions requiring the Council to be satisfied on these matters would need to be imposed.

36. A final matter concerns fencing. Mrs Pearce, in evidence, expressed some concern regarding the maintenance of the privacy of her outdoor living areas, which abut the south-eastern boundary of the subject land, and was of the view that a 2.0m high fence would be required to maintain that privacy. Most planning authorities regard a 1.8m fence or screening as satisfying privacy concerns, being higher than the eye level of most people, but it may be desirable for the Appellant to satisfy Mrs Pearce that that is the case, and to incorporate appropriate provisions for fencing in the proposal.

37. Having regard to all the above, to all that was put before me, to what I saw on the view, and to the relevant provisions of the Development Plan, I have concluded that, subject to the setback of the proposal being increased to 8.0m, and to the provision of satisfactory details concerning colours and finishes, landscaping and fencing, the subject proposal is in sufficient conformity with the Development Plan to warrant Provisional Development Plan consent.

38. By memorandum dated 13 February 2004 I advised the parties of my conclusion above. I invited the Appellant to amend the proposal as suggested, and the parties to confer on proposed conditions.

39. On the resumption of proceedings Miss Ryan, for the Appellant, tendered an amended proposal plan (Exhibit A4) indicating an 8.0m setback for Dwellings 1 and 2 and providing details of landscaping and fencing. She also handed up draft conditions of consent which had been agreed between the parties.

40. The order of the Court is that the decision of the Council on Development Applications Nos 455/900/03, 455/901/03, 455/902/03, 455/903/03, 455/904/03 is set aside and Provisional Development Plan Consent granted for the proposed development, subject to the following conditions:

1. The proposal shall be undertaken in accordance with the approved plans prepared by McCracken Homes Pty Ltd, dated 15 March 2004 and numbered MCC96-02 comprising a site plan and five drawings, two entitled Dwelling 1 and 2, two entitled Dwelling 4 and two entitled Dwelling 3 and 5 and the external selections dated 23 March 2004 comprising five sheets for Dwellings 1-5 (marked Exhibit A4) except where altered by the following conditions:

2. The fence abutting the south eastern boundary of the subject land shall be 2.0 metres in height and be constructed using colour impregnated material of "Merino" colour, with the structural posts and rails facing the subject land. The cost of that fence shall be met by the developer.

3. The developer shall provide a stormwater management plan which shall meet the Council's reasonable requirements, before Development Approval is given.

4. Landscaping shall be planted upon practical completion of the proposed dwellings utilising the schedule indicated on the site plan, and maintained to the reasonable satisfaction of the Council.

NOTE

A copy of Exhibit A4 will be retained on the Court file.