Urban Construct & Ors v City of Norwood, Payneham & St Peters & Ors No ERD-03-227 [2004] SAERDC 5 (28 January 2004)

Last Updated: 1 February 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Cole, Commissioner Hodgson and Commissioner Hutchings

Hearing

24/11/2003 to 27/11/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development application for construction of apartment building with associated parking and landscaping - Business Zone - refused by Council - whether use contemplated in zone - relationship of proposal to adjoining State Heritage Place and other nearby development - site planning issues - access and parking - proposal in conflict with many relevant Development Plan provisions - appeal dismissed and decision of Council upheld.

• Development Act 1993 ;
• Environment Resources and Development Act 1993 , referred to.

Representation

Appellant: URBAN CONSTRUCT & MARSHALL & BROUGHAM PTY LTD
Counsel: MR B HAYES QC - Solicitors: JAMIE BOTTEN & ASSOCIATES

Respondent: CITY OF NORWOOD, PAYNEHAM & ST PETERS
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Respondent: AMBITIO PTY LTD & PINAKO PTY LTD
Counsel: MR J MCELHINNEY - Solicitors: HUNT & HUNT

ERD-03-227

Judgment No. [2004] SAERDC 5

28 January 2004

URBAN CONSTRUCT PTY LTD AND MARSHALL & BROUGHAM (CONSTRUCTIONS) PTY LTD

v

CITY OF NORWOOD, PAYNEHAM & ST PETERS AND AMBITIO PTY LTD AND PINAKO PTY LTD

ERDC No. 227 of 2003

[2004] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal against a decision of the City of Norwood, Payneham & St Peters ("the Council") to refuse an application ("the application") by Urban Construct Pty Ltd and Marshall & Brougham (Constructions) Pty Ltd ("the Appellants"), for provisional development plan consent to construct a twelve level building (eleven storeys at ground level or above) containing 117 apartments, 33 of which are to be used as serviced apartments and 84 of which are to be used as residential flats (which all of the witnesses called apartments), with associated landscaping and carparking. There is no real difference between the apartments designated for the different uses. The potential would exist for the mix to change from time to time. The site of the proposed development is at the north-eastern corner of Dequetteville Terrace and Rundle Street, Kent Town. The proposed development includes the demolition of the shop at 1 Rundle Street, Kent Town.

2. The Council, having determined that the application constituted a Category 3 development, gave notice of it accordingly. Twenty-two representations were received by the Council, 8 supporting the proposal and 14 opposed. One of those representations was made by Ambitio Pty Ltd and Pinako Pty Ltd, jointly.

3. The decision of the Council to refuse the subject proposal was made on 16 June 2003. The Appellants appealed to this Court against it. Ambitio Pty Ltd and Pinako Pty Ltd were joined as a party to these proceedings.

The Land and Locality

4. The site of the proposed development comprises allotment 200 in Deposited Plan 29952 and allotment 12 in Deposited Plan 24995 ("the site"). The address of the first of these allotments is 12 Dequetteville Terrace, and the second is 1 Rundle Street, Kent Town. The site has an area of approximately 2733m2.

5. Presently, there is a two-storey former dwelling on 12 Dequetteville Terrace which is to be retained. It is listed in the State Heritage Register and is used by Marshall and Brougham as offices. Also situated on 12 Dequetteville Terrace is a bluestone stables building (now used for storage) and a bluestone side wall along Little Rundle Street, on the northern boundary of that land. Mr Butcher, a heritage architect who gave evidence in the Council's case, traced through the State Government records regarding the procedure which led up to the entry of the former dwelling on what was then called the Register of State Heritage Items. His enquiries revealed that the listing of the stables and the wall were recommended at the same time as the listing of the former dwelling, but that the stables and wall were not, in fact, listed. It was suggested on a Heritage Branch File Note that this may have been an administrative error. The fact of the matter is that the stables and walls are not listed.

6. There is a single-storey shop on Rundle Street called the "One Rundle Trading Company". It is proposed that this shop will be demolished as part of the proposal. Also to be demolished is the bluestone former stables and part of the associated bluestone wall along Little Rundle Street. It is intended that the existing two-storey State Heritage Place be retained for continuing use as offices.

7. The land is almost flat, and includes an open carparking area to the rear of the office building and a large open area on the corner of Dequetteville Terrace and Rundle Street, which area is largely covered with concrete pavement.

8. The former brewery site, on the opposite, south-eastern corner of Dequetteville Terrace and Rundle Street, has been restored and redeveloped. Situated on the brewery site are two new residential apartment towers, one of eleven storeys and the other of eight storeys and, between these, a converted six level heritage building. The remainder of the site is devoted to two-storey apartments.

9. To the immediate north of the subject land is Little Rundle Street, which provides access to a number of two-storey commercial buildings. Further north, along Dequetteville Terrace, land uses are a mixture of office and service-related activities, generally contained within two-storey buildings, the notable exception being a ten-storey office building at 19 North Terrace, Kent Town.

10. To the immediate east of the subject land, at 3 Rundle Street, Kent Town, is a narrow, single-fronted cottage set back approximately 7m from Rundle Street. Further east there is a mixture of predominantly commercial activities, including banking, office and retail land uses, with a small amount of residential development.

11. Buildings in the locality exhibit a diversity of architectural scale and form, although most are characterised by high proportions of solid to void in their elevations.

12. Little turns on the differences between the localities identified by the planners who gave evidence. Mr Smith, in his statement, said:-

"It is my opinion there are two localities relevant to the assessment of this proposal. ..

The primary locality constitutes that area where the proposed development will have both physical and visual impacts. It extends

- easterly to the intersection of Rundle Street, Kent Town, with The Parade West

- northerly to the intersection of North Terrace, Hackney Road, Botanic Road and Dequetteville Terrace

- 150 metres westerly into the parklands

- southerly to Capper Street and Prince Alfred College

The secondary locality in my opinion constitutes that area where the proposed building will be evident as a new element in the townscape. The secondary locality is transitionary, with the proposed building development losing its significance over time. The secondary locality extends

- easterly to College Road, Kent Town

- northerly to Westbury Street or Botanic Street, Hackney

- westerly to East Terrace, Adelaide

- southerly to Bartels Road, and the frontage of buildings immediately to the north of Little Flinders Street, Kent Town."

13. This is a useful approach.

14. The primary locality is dominated by Rundle Street and Dequetteville Terrace (both of which are wide, multiple-lane busy primary and secondary arterial roads), several prominent residential apartment towers constructed on the former Kent Town Brewery site, that section of the Adelaide Parklands which fronts Dequetteville Terrace and extends west along Rundle Road to East Terrace, and a mix of business and commercial enterprises to the north and east.

15. The built form character of the area immediately around the site is dominated by the bluestone wall of the former brewery on the boundary of the former brewery site on the southern side of Rundle Street. The wall has a height equivalent to two storeys.

The Proposal

16. The proposed development involves the demolition of the existing shop at 1 Rundle Street, the retention of the two-storey State Heritage Place for continuing use as offices, demolition of the bluestone former stables building and a portion of the bluestone wall to the rear of the State Heritage Place and the construction of an apartment building incorporating carparking. The proposed building would incorporate parking provision for a total of 134 cars over the equivalent of three levels, one of which (the basement/lower ground floor) would be below the existing ground level, another of which would be partly below the existing ground level (the ground/lower first floor), and the third of which (the first floor) would be entirely above the existing ground level. A pool and a gymnasium are proposed at ground level. The three carparking levels are to be accommodated within a podium which would be two-storeys, or 6.4m, in height above ground, and would be constructed to the eastern and southern boundaries of the land, forward almost to the western boundary along the Dequetteville Terrace frontage at the corner of Rundle Street, returning along the eastern and southern sides of the State Heritage Place to the northern boundary, which it would abut for 16.8 metres to the north eastern corner. A ten storey building containing 117 apartments would be built on top of the podium. At third floor level, the apartment building would step back by the width of a terrace approximately 7.6m from the podium edge on the southern side. On that portion of the western side which abuts the boundary of the land with Dequetteville Terrace, the apartment building would step back to a point just behind the State Heritage Place. Proposed external window treatments on the northern side of the building - sunscreens - would protrude slightly over Little Rundle Street.

17. All vehicular access to the site would be obtained off Little Rundle Street and Rundle Street.

18. Proposed materials include a combination of bluestone facing and precast concrete panels for the podium, and precast concrete panels combined with green tinted glass in anodised aluminium frames for the tower. The tower would be roofed in a curved roof form with Colorbond roof decking.

19. Landscaping is proposed to the western side of the site, this landscaping including relocation of a palm tree, presently located near the rear of the site, to a lawned area in the garden in the State Heritage Place.

Relevant Development Plan Provisions

20. The site is located within the Business Zone on Map KeN/3 in the Development Plan for the City of Kensington and Norwood dated 27 June 2002, which is the Development Plan relevant to the application. The Business Zone is divided into policy areas, and the land is located within the Kent Town Policy Area.

21. Several Metropolitan Adelaide Objectives and Principles and Council Wide Objectives and Principles mentioned by various of the planners who gave evidence are also relevant, and we have considered them.

Assessment

Proposed Land Use

22. Among the existing land uses on the north western side of Rundle Street within the primary locality, businesses predominate. On the south eastern side of Rundle Street, residential uses predominate. The zoning is broadly consistent with this.

23. There are three Objectives for the Business Zone.

"BUSINESS ZONE

Objective 1: Development providing offices, consulting rooms, retail showrooms and other business and related activities.

Objective 2: Development providing warehouses, light and service industry and service trade premises in locations specified hereunder.

Objective 3: Development for tourism related facilities in parts of the Kent Town Policy Area specified hereunder."

24. The wording following the Zone Objectives goes into further detail:

"The Business Zone accommodates a range of existing business activities in premises of variable nature and quality, with opportunity for the development and consolidation of offices and consulting rooms with some retail showrooms as well as for the upgrading, expansion and consolidation of business activities. Progressive improvements should be made to the environmental and servicing aspects of business, and development in the zone should progressively upgrade existing business areas and main road frontages."

25. The subject land lies within the Kent Town Policy Area component of the Business Zone, which, the Plan says, "should be consolidated as an area of high quality offices and consulting rooms".

26. Zone Principle 1 seeks development in that zone which is "primarily ... for offices, consulting rooms and retail showrooms of a low traffic generating nature, except in the King William Street Policy Area where light and service industry and service trade premises should predominate".

27. These provisions strongly favour business uses within the Business Zone. Residential uses are not encouraged, though there are references to residential development in Zone Principles 7 and 11, which deal with the detail of design and siting.

28. This extract of the text for the Kent Town Policy Area in the Development Plan is relevant to the question of use:-

"The Kent Town Policy Area relates to the arterial road frontages in the northern part of Kent Town. It should be consolidated as an area of high quality offices and consulting rooms, with some retail showrooms on the North Terrace frontage. Development incorporating hotel/motel use, other tourist accommodation and historical/cultural/artistic use should be considered for the malting plant site on the corner of Dequetteville Terrace and Rundle Street and other historic buildings where appropriate."

29. There was a divergence of opinion among the planning witnesses as to whether that text was supportive of the proposed development. It is not. It encourages the use of existing historic buildings for hotel/motel use, other tourist accommodation and historic/cultural/artistic use. It has nothing to say in relation to the construction and use of a new building on the same site as a historic building. The purpose of the statement quoted is to increase the range of permissible land uses for the adaptive reuse of historic buildings as a preservation and conservation measure. In the proposed development, the use of the State Heritage Place is to remain unchanged. It is, and will be, an office, which is consistent with the objectives for the Business Zone.

30. The sole principle specifically for the Kent Town Policy Area says:-

"1. The Kent Town Policy Area may include hotel, motel and other tourist-related development on or near the Dequetteville Terrace frontage and retail showrooms on the North Terrace frontage."

31. The residential apartments are not fundamentally "tourist-related development". Tourists may possibly use some of the serviced apartments from time to time.

32. The use proposed for the proposed tower is not a use sought in the Business Zone, nor is it a use encouraged on this site, in its locality or in the Kent Town Policy Area. This is one of the factors to be weighed in the planning assessment of the proposed development, and it weighs against the proposal.

Design

33. The Plan contains a series of provisions directed towards the achievement of an appropriate design relationship between new development on the subject land and elsewhere, and both the Kent Town Brewery site and the City of Adelaide Parklands. These provisions also refer to the desirability of achieving a "gateway" to the City of Kensington and Norwood at the intersection of Dequetteville Terrace and Rundle Street. The Development Plan recognises that part of the site has special characteristics. The text in relation to the Kent Town Policy Area states, in part:-

"Significant corner sites ... [include] ... the corners of Dequetteville Terrace with North Terrace and Rundle Street. The latter three sites are significant in forming important visual gateways to the city on the parkland frontage. The southern Rundle Street corner contains an important heritage building which already achieves townscape significance through its siting, height and massing. This effect should be counter-balanced by a similar scale development on the northern corner of Dequetteville Terrace and Rundle Street ...

The Dequetteville Terrace frontage is significant as a border to the City of Adelaide Parklands. New buildings should be of a high quality in recognition of the uniqueness of this frontage ...

Generally the Kent Town Policy Area may accommodate development of greater height and bulk than elsewhere in the city, having regard to the prominent corner sites and frontages and topographical features which place some of the area in the depression formed by First Creek."

34. In essence, the issues in dispute centred on whether the proposed development would:

•	visually reinforce the intersection;

•	assist in creating a "gateway";

•	be of a scale and form compatible with the heritage building on the subject land and with the heritage buildings on the Kent Town Brewery site;

•	complement the Kent Town Brewery redevelopment as a whole, including the new residential towers on that site;

•	be a "good neighbour" to uses on contiguous sites; and

•	be satisfactory, both functionally and visually, on its site.

35. There is no doubt that the proposal would visually reinforce the intersection. It would be a massive structure. Its large mass would result in it sitting uncomfortably with all immediately surrounding development, including the Kent Town Brewery complex, when viewed from vantage points within both the primary and secondary localities. Although the brewery site features a residential tower in a location previously occupied by a number of silos, and has a somewhat lower residential tower further to the south, the overall effect is of intricate forms and shapes stepping up from the street frontages, with glimpses of open spaces here and there; ridged roofs, pyramid roofs, rounded corners, more solid than void in the walls and careful matching of heritage detail. In contrast, the shapes of the proposed development are square and simple, with long high walls and almost flat roofs. In its relationship with buildings north of Little Rundle Street it is clearly over-scaled and, in part, would sit over that street. In its relationship with the dwelling on its eastern side we can only say, to use words from seminal urban design texts, that it is "bad mannered" in the extreme, looming above that dwelling to an unacceptable degree and creating potential for overlooking from more than 40 apartments. This is contrary to Metropolitan Adelaide Principle 10 and Council Wide Principles 3 and 34. The Development Plan does not confine the protection of the amenity of existing dwellings to dwellings in residential zones.

36. The eastern elevation of the podium part of the proposed building has been shaped and detailed, on the evidence of Mr Ferris, to complement the restored heritage wall of the former Kent Town Brewery. The two walls would, in our view, form something of a gateway. However, they would also give rise to a tunnel effect between two long, relatively high walls, with little relationship to the public spaces of the roads and footpaths.

37. The proposal would be an overdevelopment of the site. Its scale and mass are well beyond that which is envisaged by the Development Plan. This is further illustrated by the fact that the proposed high rise tower would loom above the State Heritage-listed office building, and by the lack of a setback on the eastern boundary sufficient even to accommodate exhaust vents from the carpark and stormwater runoff. It is also underscored by the proposal's failure to satisfy the site area requirements set out in Zone Principle 11. That principle requires an average site area of 120m2 per dwelling unit. Even if the 'site' is taken to include the curtilage of the retained State Heritage Place, the average site area per dwelling appears to be in the order of 24m2.

38. In addition to overwhelming the State Heritage-listed building on the subject land, the proposed building would also overwhelm the more moderately proportioned developments in the locality, both north and south of Rundle Street, thereby conflicting with a number of provisions of the Development Plan, including Zone Objectives 1, 2 and 3 and Principles 3, 9 and 11, Metropolitan Objective 39 and Principle 10, and Council Wide Objectives 16, 17, 18 and 20 and Principles 3, 15, 27, 29, 30, 31, 45, 46 and 61.

Carparking

39. The proposal would require a substantial amount of carparking, as evidenced by the need to cover almost the entire site at podium level for several storeys in order to accommodate the number of carparking spaces required by the Development Plan.

40. Ms M Mellen, a qualified and experienced traffic engineer, in evidence expressed herself, was satisfied that the proposal provided adequate parking which, subject to minor modifications, would generally conform with the relevant Australian Standard, and that parking provision and access arrangements met the relevant requirements of the Development Plan.

41. Mr F Siow, also a qualified and experienced traffic engineer, gave evidence regarding what he saw as a range of deficiencies in the carparking layout, and expressed concern as to the adequacy of visitor parking provision. Resolution of these deficiencies and provision of adequate visitor parking could, in his view, result in significant design changes to the parking layout and potentially, to the proposal as a whole.

42. We accept that a number of minor changes might be required to satisfy the relevant standards and to address potential hazards associated with movement into and out of the carparking area. We do not see these as necessitating fundamental changes to the design of the proposal. We are, however, concerned about the extent to which the provision of adequate visitor parking is reliant upon careful monitoring and management of all carparking on the site. That is undesirable.

Conclusion

43. Having regard to our observations on the view, to all the evidence, and to the relevant provisions of the Development Plan, we conclude that the proposal offends the relevant provisions of the Development Plan to the extent that it should not be approved. The decision of the Council to refuse the subject proposal was correct and will be upheld. The appeal is dismissed.

44. There will be an order to that effect.