[Home] [Databases] [WorldLII] [Search] [Feedback]

Environment Resources and Development Court of South Australia Decisions

You are here: AustLII >> Databases >> Environment Resources and Development Court of South Australia Decisions >> 2004 >> [2004] SAERDC 59

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Domains (SA) Pty Ltd v City of Unley [2004] SAERDC 59 (5 August 2004)

Last Updated: 9 August 2004

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

DOMAINS (SA) PTY LTD v CITY OF UNLEY

Judgment of Commissioner Hodgson

5 August 2004

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - application to demolish existing dwelling, construct carport to side of existing dwelling and construct five two-storey dwellings - Residential C150 Zone - refused by Council - appeal - relevance of existing and desired built form character - overlooking - noise - solar access - stormwater retention - traffic safety and parking - first intrusion - policies for zone render change inevitable - proposal generally consistent with relevant provisions of Development Plan - Provisional Development Plan Consent granted, subject to conditions.

Nadebaum v City of Mitcham [1995] EDLR 587; Toyias and Others v Alan Sheppard Homes Pty Ltd and Others [1997] SASC 6160; (1997) 69 SASR 42, considered.

DOMAINS (SA) PTY LTD v CITY OF UNLEY
[2004] SAERDC 59

(ERDC No. 72 OF 2004)

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an appeal against the decision of the City of Unley ("the Council") to refuse an application by Domains (SA) Pty Ltd ("the Appellant"), which application sought Provisional Development Plan Consent for the demolition of an existing dwelling, the construction of a carport to the side of an existing dwelling and the construction of five two-storey dwellings on land at 7 Berkley Avenue and 24 Hillsley Avenue, Everard Park.

The Land and Locality

2 The subject land is situated on the corner of Hillsley Avenue and Berkley Avenue, Everard Park and comprises two allotments typical of those found throughout the broader locality. Each allotment fronts Hillsley Avenue and, taken together, present a frontage to Hillsely Avenue of approximately 35.4m and a frontage to Berkley Avenue of 45.0m, producing a total site area of approximately 1,593m².
3 The site is presently occupied by two detached dwellings. The dwelling at 7 Berkley Avenue is a cream brick building which appears to date from the 1960’s. The dwelling faces both Hillsley and Berkely Avenues and has a double garage located on the Berkley Avenue frontage. It is set back some 9.0m from Hillsley Avenue and 7.0m from Berkley Avenue.
4 Number 24 Hillsley Avenue is a detached bungalow in need of some restoration and repair. The dwelling proper is set back some 9.4m from Hillsley Avenue but features an extensive verandah, the pillars of which are set back approximately 7.0m from Hillsley Avenue. Garaging is located to the rear of the dwelling.
5 The localities defined respectively by Ms W Bell and Ms J Nolan, both qualified and experienced town planning consultants who gave evidence in this matter, were virtually identical, extending northwest along Berkley Avenue to its junction with Anzac Highway and some four allotments northeast and southwest of that junction and a similar distance southwest and northeast of the junction of Berkley Avenue and Hillsley Avenue. Both localities also took in residential properties on the other side of a small triangular park opposite the junction of Berkley Avenue and Hillsley Avenue.
6 Hillsley Avenue is the street frontage for the two existing dwellings on the subject land. That part of Hillsley Avenue within the locality defined by the two planning witnesses features mature street trees and rectangular allotments of a size consistent with those forming the subject land. The southeastern side of Hillsley Avenue is dominated by the triangular park referred to earlier. That park is well vegetated and incorporates a toilet block and park furniture. A slightly different allotment layout is evident on the southeastern side of Hillsley Avenue as a consequence of a number of small roads intersecting obliquely with Hillsley Avenue.
7 Dwelling within the locality, particularly those on the northwestern side of Hillsley Avenue, are predominantly detached single-storey dwellings, the majority appearing to date from the 1920’s to 1940’s, and most constructed of masonry with tiled or galvanised roofs. Some single-storey residential flat buildings are evidence, as well as a recently-approved pair of semi-detached dwellings. Most residential properties feature fences, typically post and wire mesh or low hedges, and landscaped front gardens. Several dwellings feature a second level incorporated into the roof space.
8 Setbacks to Hillsley Avenue, particularly on the northwestern side, range between 7.0m to 9.0m, with dwellings typically being sited close to one side boundary with garaging located to the opposite boundary, often to the rear of those dwellings. Dominant architectural features include wide verandahs and pillar supports and gable- ended roof forms.
9 Berkley Avenue is a short street connecting Hillsley Avenue with Anzac Highway. Only four allotments abut this street and three of them present their side boundary to it. On the northeastern side of Berkley Avenue are three double garages, set close to the street alignment, and four single-storey units with a direct frontage to Berkley Avenue are located between the subject land and Anzac Highway. Setbacks along Berkley Avenue range from nil to 7.0m and this creates a sense of enclosure which contrasts markedly with the spaciousness evident in Hillsley Avenue. A prominent feature of the Berkley Avenue streetscape is dense verge planting of established Queensland Box trees.
10 Abutting portion of the land to the northwest is a purpose-built child care centre fronting Anzac Highway. An outdoor children’s play area is located towards the rear of that centre, adjoining portion of the boundary of the subject land. Nearby development fronting Anzac Highway includes commercial developments, dwellings and two-storey flats and apartments. The locality is predominantly residential in nature and with the exception of that part of the locality abutting Anzac Highway, is of moderate to high amenity.

The Proposal

11 The proposal entails the demolition of the 1960’s dwelling at 7 Berkley Avenue, retention of the bungalow at 24 Hillsley Avenue and the development of:

• a pair of two-storey semi-detached dwellings on the corner of Hillsley and Berkley Avenues, with a frontage to Hillsley Avenue;

• a row of three part two-storey row dwellings fronting Berkley Avenue and extending into the rear yard of 24 Hillsley Avenue; and

• the subdivision, retention and refurbishment of the existing dwelling at 24 Hillsley Avenue on a smaller allotment of some 480m².

12 Allotments to be created for the new dwellings would range from 220m² to 255m². Private open space in excess of 40m² would be provided for each new dwelling, and some 90m² for the retained bungalow. One garage and one visitor carpark would be provided for each dwelling. All upper level windows would incorporate obscure fixed glass to a height of 1700mm above floor level. Street setbacks would be generally consistent with those of adjoining development, being 9.0m to Hillsley Avenue and 5.5m to Berkley Avenue. The northernmost of the pair of semi-detached dwellings fronting Hillsley Avenue would have its lower level set back 1.5m from Berkley Avenue and its upper level 2.5m.
13 Proposed materials are red brickwork detailing at the building base with sand rendered walls and cream windows and garage doors. Roofing would be Slate Grey Colorbond.
14 The semi-detached dwellings would be two-storey in height, while the row dwellings would be part single and part two-storey. The street elevation of each dwelling would feature gabled roofs to garages and the main dwelling, and balconies to the upper level, opening from bedrooms and providing shelter to the entrances.
15 The row dwellings would be similar in appearance, although they would feature separate porches at ground level and the garages would be an integral part of each dwelling.
16 Dwellings 1 and 2 (the semi-detached dwellings) would comprise a single garage, living area, family room, kitchen laundry and w/c on the ground floor and a main bedroom with ensuite and robe and two additional bedrooms and a separate bathroom on the upper floor.
17 Dwellings 3, 4 and 5 (row dwellings) would comprise a garage, entry, living room, master bedroom and ensuite, laundry, kitchen and family room on the ground floor and two additional bedrooms, an activities room and separate bathroom on the upper floor.
18 Dwellings 3 to 5 would have a private open space area of 48.0m² or thereabouts per dwelling, while Dwelling 1 would have a private open space area of 42.0m² and Dwelling 2, 49.5m².

Development Plan Provisions

19 At the time of lodgement of the subject application, the subject land was located within the Residential C150 Zone depicted on Map Un/3 in the Development Plan for the City of Unley dated 25 September 2003. The Development Plan was subsequently amended to grant interim affect to the rezoning of the subject land and portion of the locality to Residential C350. However, pursuant to Section 53 (2) of the Development Act 1993, those provisions of the Development Plan relevant to the assessment of the subject proposal and to these proceeding are those provisions of the Development Plan in force at the time the application was made. The Desired Character Statement for the Residential C150 Zone includes the following:

Residential C150 Zone

".... This Zone is intended to contain development of a medium-high density nature up to three-storeys, close to public transport and close to the City.

....

Medium-higher density development in the Zone should occur mainly through site amalgamation rather than on individual allotments to afford larger, more functional development sites. Development should respond particularly to the issues of access from Anzac Highway and South Road, protection of amenity enjoyed by adjoining existing dwellings, car parking, noise attenuation design and the creation of attractive new residential environments.

Allotments are generally 600 square metres or more in area and as such offer potential for substantial intensification of dwelling development.

....

Built form will be the predominant element in the locality and should be located and shaped to minimise impact on adjoining dwellings."

20 The objectives for the zone are as follows:

"Objective 1: A zone primarily accommodating residential buildings up to three storeys high."

"Objective 2: Provision for compact forms of dwellings to take advantage of the ready accessibility of the land to transport facilities in the zone."

"Objective 3: Residential development which establishes a character typified by high quality landscaping and building design and in a manner which minimises adverse impact upon the amenity of adjacent residential areas and zones."

21 Relevant Zone Principles are as follows:

"Principle 1: Development should be for single, two and three-storey residential buildings."

"Principle 2: Medium density development should occur on amalgamated sites to:

(a) facilitate appropriate site planning and building layout;

(b) facilitate safe vehicular access, egress and parking;

(c) improve opportunities for traffic noise attenuation; and
(d) complement the existing configuration, scale and form of dwellings in Hillsley Avenue by their retention or through compatible new development, and incorporate the newer higher density development in rear yards and in properties fronting Anzac Highway."

"Principle 3: Dwellings should have a site area of not less than 150 square metres (averaged for three or more dwellings sharing a common access). In the case of hammerhead allotments or allotments incorporating a right of way or shared access for one or two dwellings, the area of the "handle" or right of way is excluded from individual dwelling site areas."

"Principle 5: Development should protect the amenity of existing housing including that in adjacent residential zones."

"Principle 6: Development should provide for attractive and complementary front garden landscaping and screening to adjoining development."

22 It was common ground between the parties that the proposal constituted a consent form of development, requiring consideration against the relevant provisions of the Development Plan. Council Wide Development Plan provisions of particular relevance to assessment of the subject proposal are as follows: Objectives 5, 9, 30, 31, 32, 33, Principles 3, 12, 13, 14, 15, 22, 34, 40, 41, 53, 64, 65, 66, 67, 68, 70, 72, 74, 75, 77, 78, 79, 80, 81, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 99, 103, 108, 110, 112, 128, 131, 132 and 133.

Assessment

23 The primary issue in this matter was whether the proposed development was sufficiently in character with existing built form in the locality to satisfy the relevant provisions of the Development Plan. Secondary issues raised were whether there was potential for overlooking of the child care centre from the adjoining row dwellings, whether the proximity of one of the row dwellings to the outdoor play area of the child care centre would result in unacceptable noise impacts on the occupants of that dwelling, whether adequate solar access was provided to the proposed development, whether adequate provision was made for stormwater management and retention on the subject land, and whether there were traffic safety and parking problems created by the proposal.

Character and Amenity

24 Ms Bell, in evidence, was of the opinion that the proposal was insufficiently sensitive to the character of the locality, which was predominantly single-storey dwellings on relatively large allotments. Because the proposal would be the first two-storey medium density development in the zone, a "particularly sensitive design" was required to achieve compatibility with the desired character for the zone.
25 Ms Bell voiced the following criticisms of the proposal:

(a) the form of the two semi-detached dwellings fronting Hillsley Avenue was incompatible with the low-scale built form evident in that street, and failed to reflect the predominant architectural language of existing dwellings. In this respect it was contrary to Zone Principles 2(a), (c) and (d), 5 and 6;

(b) the proposed row dwellings in particular conflicted with Council Wide Principle 64 (a) and (b), inasmuch as they did not have an overall appearance from the street of a single detached dwelling, the garages having separate roofs which were not integrated into the overall built form and there being a proliferation of separate roof forms. The decorative elements on the semi-detached dwellings, such as the porch structure, were also, in Ms Bell’s view, out of scale with such structures on adjoining dwellings.

Principle 64 relevantly reads as follows:

"64. The appearance of buildings and land should not detract from the visual amenity and built from character of neighbouring property and from the desired future character of the locality having particular regard to:

(a) building mass and proportion (particularly where two or three storey development is proposed adjacent respectively to single or two storey development);

(b) the manner in which buildings address public streets;........."

(c) although low front fencing was prevalent in the locality, no front fencing was proposed, again contrary to Council Wide Principle 64;

(d) the proposed setback of Dwelling 2 from Berkley Street would be contrary to the desired future character of the area, and therefore conflict with Council Wide Principle 74, which is in the following terms:

" 74. Set-back of dwellings (other than carports and garages) from public roads should:

(a) contribute to the desired future character of the area (as described in Residential Zone provisions);

....

(d) be similar to or compatible with set-backs of:

(i) dwellings on adjoining land; and

(ii) dwellings in the locality;

...."

(e) the garages of the proposed row dwellings would dominate the presentation of those dwellings to the street due to the separate roof form for each and their siting forward of the main façade of each dwelling, thereby conflicting with Council Wide Principle 75, which reads:

"75. Garages and carports located to the side of a dwelling and facing a public street frontage should:

(a) not diminish the attractiveness of the streetscape;

(b) not dominate presentation of the associated or adjacent dwelling to the street (refer Figure 12);

(c) provide for adequate on-site car parking;

(d) not adversely impact on the amenity of neighbours;

(e) not adversely impact on the safety of adjacent road users; and

(f) provide for adequate sight-lines for reversing manoeuvres onto the street."

26 Ms Nolan, in evidence, observed that the Residential Zones in the City of Unley were structured around a hierarchy based on building height and density. The Residential C150 Zone, together with the Residential C120-180 Zone, provided for the highest density and greatest height achievable within that hierarchy. In Ms Nolan’s opinion the proposal, being one to two-storey development, at an average density of 265m² per dwelling, fell comfortably short of the maximum height and density prescribed for the zone. Further, it responded to the existing character of Hillsley Avenue by orienting the more bulky row dwellings away from Hillsley Avenue, by retaining an existing Hillsley Avenue bungalow, and by minimising the impact of the two-storey elements on Hillsley Avenue through careful design and architectural treatment. Consistent with Zone Principle 2(a), the proposal successfully married new, high-density development with existing housing, utilising a site created by amalgamation.
27 Having regard to the maximum height and density prescribed for the zone, said Ms Nolan, the introduction of new dwelling forms markedly different from those presently in the zone was to be expected. The proposal achieved a comfortable "fit" with existing housing nearby, in a number of ways:

(a) by removing a 1960’s dwelling with little street appeal;

(b) by setting back the semi-detached dwellings a distance consistent with the setback of adjoining dwellings in Hillsley Avenue;

(d) by incorporating into the design identifiable elements of buildings presently in Hillsley Avenue, including red brick base courses and verandah supports, sand coloured render, prominent gable frontages, Dutch gable ends, and appropriately pitched and articulated roof forms; and

(e) by allowing ample area for front landscaping.

28 It is clear, from the Zone provisions, that the forms of development anticipated in the Residential C150 Zone are very different from those presently characteristic of that zone. The Desired Character statement for the zone refers to the potential within the zone for "substantial intensification" and to the fact that "built form will be the predominant element in the locality". At the same time, the zone provisions seek to minimise impact on adjoining dwellings.
29 On more than one occasion this Court has had to consider the issue of a form of development constituting a "first intrusion" into a locality with a strong established character. In his decision in Nadebaum v City of Mitcham [1995] EDLR 587, at 593, Judge Bowering observed that:

"Where a proposed development is of a type recognised by the objective of the zone as falling within one of the primary purposes of the zone, the fact that its approval will constitute a first intrusion of that type of development into the locality does not, of itself, constitute a planning justification for refusal. If, however, the proposal fails, in a material respect, to meet relevant provisions of the Development Plan, the fact that it may constitute a precedent within its locality, is a matter to which due weight should be given."

30 These observations were adopted by Debelle J in his judgment in Toyias and Others v Alan Sheppard Homes Pty Ltd and Others [1997] SASC 6160; (1997) 69 SASR 42.
31 The Residential C150 Zone is a relatively small zone, extending only 1–2 allotments deep from its northwestern and western boundaries, which coincide with Anzac Highway and South Road respectively. That being the case there is little, if any, scope for development at higher densities occurring in a manner which will not have some impact on existing dwellings in the zone. It is probably for that reason that Zone Objective 3 seeks to "minimise" rather than prevent adverse impacts on residential amenity. The subject proposal will introduce a form of development which is manifestly different from the existing dwellings in the locality. In my assessment, however, it does so in a manner which does minimise adverse impacts, for the reasons detailed by Ms Nolan, whose evidence I find more persuasive than Ms Bell’s on the issue of the proposal’s impact on the character and amenity of the locality. The proposed dwellings step down in height towards the common boundary with adjoining single-storey dwellings. They are suitably articulated and the two-storey components are only between 2.0m and 2.5m higher than the ridge height of the abutting dwellings. Setbacks are consistent with, or greater than, those of adjoining dwellings with the exception of that for Dwelling 2, on the corner of Hillsley and Berkley Avenues, where the lower level is set back 1.5m from the street, and the upper, 2.5m. This reduced setback is acceptable, in my view, having regard to two considerations:

(a) it is generally accepted that the side setback for dwellings on corner allotments can be substantially less than their front setback; and

(b) a number of structures in Berkley Avenue are located even closer to the street boundary.

32 Proposed materials and finishes are, in my view, consistent or compatible with those prevailing in the locality, and while the garages to the row dwellings sit somewhat forward of the remainder of those dwellings, they are set further back than the adjoining dwellings and, being single garages well separated from each other, will not, in my view, dominate the streetscape.
33 Overall, I find that the proposed development is one which will fit comfortably into the established streetscape.
34 I turn now to the other issues raised in these proceedings.

Overlooking

35 Ms J Crichton, the proprietor of the abutting child care centre, expressed some concern, in evidence, regarding the potential for overlooking of the outdoor play area of the centre from the bedroom window of the row dwelling sharing part of its side boundary with the centre.
36 The upper level windows from which views potentially could be obtained of the child care centre are shown on the proposal plans as being fitted with fixed obscure glazing to a height of 1700mm above floor level, with an awning sash opening above that for ventilation. That, it seems to me, suffices to ensure that unreasonable overlooking will not occur. Ms Crichton expressed some concern as to the adequacy of some kinds of "obscure" glazing to actually prevent overlooking. It is for the Council, at the Building Rules Consent stage, to satisfy itself that the glazing proposed is sufficiently obscure to prevent overlooking. Given the proposed obscure glazing of the relevant windows, I am satisfied that those Development Plan provisions directed towards the prevention of overlooking are met.

Noise

37 A further concern raised in evidence by Ms Crichton was the potential for complaints about noise to be made by occupants of the row dwelling abutting the common boundary with the child care centre.
38 Expert noise evidence was given in this matter by Mr C Turnbull, a qualified and experienced acoustic engineer. Having undertaken noise measurements Mr Turnbull concluded that:

"The noise from children in the childcare centre to the existing rear yard of 24 Hillsley Avenue is likely to occasionally exceed the Environment Protection (Industrial Noise) Policy and the World Health Organisation recommendation to protect the majority of people from being seriously annoyed."

39 While Mr Turnbull noted that anyone occupying the row dwellings nearest the child care centre would do so in full knowledge of the potential for noise from that source, he advised that erection of a 3.0m acoustic fence along the common boundary would ensure the criteria referred to were met, provided also that the two upper-level windows closest to the boundary were also closed. Mr Turnbull noted that other upper-level windows were able to provide adequate ventilation in these circumstances.
40 Ms Crichton, in evidence, advised the Court that, provided the fence suggested achieved the relevant noise criteria and was erected entirely at the appellant’s expense, she considered its erection an acceptable basis upon which to address the problem of potential noise.
41 With the incorporation of the fence suggested by Mr Turnbull, I am satisfied that Zone Principle 4 is met.

Solar Access

42 Council Wide Principles 15, 87 and 88 are directed towards protection of solar access for existing and proposed residential development. They are in the following terms:

"15. Buildings should be sited and designed in such a way as to provide privacy and access to sunlight for existing and proposed development. In this regard attention should be paid to:

(a) the possibilities of overlooking and overshadowing of the adjoining development;

(b) the location of windows and doors in relation to adjacent development; and

(c) the possibilities of cutting off views for adjoining development."

"87. Adequate natural light should be available within habitable rooms located near neighbouring properties."

"88. Buildings should be sited and designed to ensure that adequate sunlight is available to:

(a) ground level private open space of existing dwellings;

(b) upper level balconies which provide the primary open space area for any existing dwelling; and

(c) habitable room windows of adjacent dwellings."

43 Ms Bell, in evidence, was critical of the proposal inasmuch as it would, in her view, result in the overshadowing of windows to habitable rooms and the private open space of the existing adjoining dwelling (24 Hillsley Avenue) and also overshadow the private open space of the proposed row dwellings in winter.
44 Ms Nolan, in evidence, acknowledged that the provision of residential frontages to both Berkley and Hillsley Avenues (an outcome sought by the Development Plan) in combination with the narrowness and orientation of the zone and the greater heights envisaged within it, rendered inevitable the limitation of sunlight received in the rear yards of the three row dwellings and 24 Hillsley Avenue, although there would be no adverse effect on 26 Hillsley Avenue, which adjoins the subject site.
45 She concluded that:

"In the context of the density provisions of the zone and given the limiting attributes of the site (orientation and road frontages), I do not believe that reduced access to winter sunlight is a matter fatal to the application."

46 I agree. The Development Plan for the City of Unley now contains a great many provisions which bear on new residential development. It would be a rare development indeed which met every one of them. It is established law that assessment of development should occur against all relevant Development Plan provisions and that an exercise of planning judgment is required in balancing up areas of compliance and non-compliance with those provisions. On balance, I do not consider the proposal’s failure to meet fully the solar access provisions of the Development Plan to be fatal.

Stormwater Retention

47 As Ms Bell observed in evidence, the Development Plan for the City of Unley now gives particular weight to environmental design issues, including stormwater management. She was critical of the proposal inasmuch as it did not provide any details regarding on-site stormwater management, such as would allow assessment against the stormwater management provisions of the Plan, which are found in Council Wide Principles 30, 34, and 35, which read as follows:

"30. Development of stormwater management systems should be designed and located to improve the quality of stormwater, minimise pollutant transfer to receiving waters, and protect downstream receiving waters from high levels of flow."

"34. Development should incorporate appropriate measures to minimise any concentrated stormwater discharge from the site."

"35. Development should incorporate appropriate measures to minimise the discharge of sediment, suspended solids, organic matter, nutrients, bacteria and litter and other contaminants to the stormwater system and may incorporate systems for treatment or use on site."

48 I agree with Ms Bell that it is desirable, having regard to the above provisions, that details of proposed on-site stormwater management measures should be provided prior to the issuing of any Provisional Development Plan consent for the proposal.

Traffic Safety and Parking

49 Ms K Lintern, who resides with her husband at 26 Hillsley Avenue, gave evidence in this matter. Amongst the concerns she expressed about the proposal were the potential for the semi-detached dwellings on the corner of Hillsley and Berkley Avenues to restrict sight lines to the junction of those two streets for drivers reversing from the driveway of her property, and the reduction in on-street parking which would result from additional cross-overs in Berkley Avenue.
50 The only expert traffic and parking evidence in this matter was given by Mr S Foley, a qualified and experienced traffic engineer. His evidence was that there would be no reduction in the safety of reversing manoeuvres from 26 Hillsley Avenue as a consequence of the proposal. He acknowledged that there could be some loss of on-street parking, but noted that this would largely be off-set by on-site provision for visitor parking. Overall, he did not consider that the proposal would create any adverse consequences for on-street parking in the locality, and was therefore consistent with the relevant Development Plan provisions, Council Wide Principles 108, 109, and 110.

Conclusion

51 Having regard to all the above, to what I saw on the view, to all the evidence and to the relevant Development Plan provisions, I have concluded that, on balance, the subject proposal warrants consent. It is a development which falls well short of realising the full development potential delineated in the zone provisions, and is of a design and layout which, in my view, pays adequate regard to its setting, bearing in mind the inevitability of some dichotomy between the height and density of existing development and that envisaged by the zone provisions. In common with most development proposals, it does not satisfy all relevant provisions of the Development Plan but it is sufficiently consistent with those provisions to be supportable.
52 By memorandum dated 28 June the parties were advised of the above conclusion and the reasons for it. The Appellant was invited to make the requisite amendments to the proposal and the parties to discuss and, if possible, agree proposed conditions.
53 The parties came before me again on 27 July 2004. Mr McElhinney tendered an amended proposal plan incorporating the amendments sought in my memorandum, and Mr Leadbeter handed up draft conditions which had been agreed between the parties.
54 It is the decision of the Court that this appeal is allowed and Provisional Development Plan Consent granted to Development Application No. 090/00020/04/DX, subject to the following conditions:

1. The development herein approved shall be undertaken in accordance with the plans prepared by D’Andrea & Associates being the ground floor-site layout plan dated 1/04, Amendment E (19/7/04) and the location plan 7/03 Amendment B (9/7/04) and the details accompanying the application to the satisfaction of Council except where varied by the following conditions.
2. All stormwater from the building and the subject land shall be retained where possible on the subject land. Where the stormwater must be disposed of from the subject land such disposal shall not adversely affect any properties adjoining the subject land, or the stability of any building on the subject land. In particular, where stormwater is disposed to the street water table, it shall not be disposed of over a crossing place and the connection of the stormwater to the street water table shall be subject to application and in accordance with the requirements and to the satisfaction of the Council.
3. Engineering plans which demonstrate the provisions for the detention and storage of stormwater on the subject land and for the disposal of excess stormwater to the street water table in accordance with Condition 2 shall be prepared and provided to the Council prior to or at the time of the application for Building Rules Consent.
4. Any air conditioning plant associated with any of the proposed buildings shall be placed on the exterior of the buildings in a location and position whereby it does not cause any nuisance to neighbouring property owners and other building occupants within the subject land. Any air conditioning plant which does not meet the criteria specified in paragraph 4(3)(a) of Schedule 3 to the Development Regulations shall be the subject of a separate application to Council.
5. Any difference in finished ground levels between the subject land and adjoining land shall be retained on the boundary between the subject land and the adjoining land by an appropriate wall or plinth of masonry, concrete, new sleeper or a similar appropriate construction.
6. Where the finished ground level falls towards the boundary then a concrete kerb measuring 100mm in height shall be constructed along the relevant boundary and shall be of a construction and form which prevents stormwater from the subject land entering adjoining land.
7. Any retaining wall constructed on the boundary of the subject land shall not allow water to flow across the boundary.
8. All driveways associated with the approved development shall be located at least one metre from the base of the street trees located adjacent the subject land.
9. Prior to occupation of the proposed dwellings and in accordance with the Ground Floor Site Layout Plan a three metre high double sided Colorbond acoustic fence shall be erected along the common boundary between the Ashford Child Care Centre and the subject land for the purpose of ensuring that noise from the Child Care Centre does not cause a nuisance or annoyance to occupants of dwellings on the subject land.
10. The windows in bedroom numbered 3 and the activities room on the upper floor of dwelling 5 shall be of fixed translucent glass to a height of 1700mm above floor level so that they cannot be opened, to assist in maintaining the privacy of occupants of the Ashford Child Care Centre. An awning sash opening above the height of the fixed window shall be provided for ventilation.
Council Notes
1. It is recommended that as the applicant is undertaking work on or near the boundary, the applicant should ensure that the boundaries are clearly defined by a Licensed Surveyor prior to the commencement of any building work.

2. The applicant is reminded of the Fences Act 1975. Should the proposed works require the removal, alterations or repair of an existing boundary fence or the erection of a new boundary fence, a ‘Notice of Intention’ must be served on adjoining owner(s). Please contact the Legal Services Commission for further advice on 8463 3555 or refer to their website at www.lsc.sa.gov.au.
3. The applicant is advised that any damage to the road reserve, including road, footpaths, public infrastructure, kerbing, guttering, street trees, and similar shall be repaired by the Council and the Council expects to recover the full cost of such repairs from the applicant, or owner of the land.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/sa/SAERDC/2004/59.html

2	The subject land is situated on the corner of Hillsley Avenue and Berkley Avenue, Everard Park and comprises two allotments typical of those found throughout the broader locality. Each allotment fronts Hillsley Avenue and, taken together, present a frontage to Hillsely Avenue of approximately 35.4m and a frontage to Berkley Avenue of 45.0m, producing a total site area of approximately 1,593m².
3	The site is presently occupied by two detached dwellings. The dwelling at 7 Berkley Avenue is a cream brick building which appears to date from the 1960’s. The dwelling faces both Hillsley and Berkely Avenues and has a double garage located on the Berkley Avenue frontage. It is set back some 9.0m from Hillsley Avenue and 7.0m from Berkley Avenue.
4	Number 24 Hillsley Avenue is a detached bungalow in need of some restoration and repair. The dwelling proper is set back some 9.4m from Hillsley Avenue but features an extensive verandah, the pillars of which are set back approximately 7.0m from Hillsley Avenue. Garaging is located to the rear of the dwelling.
5	The localities defined respectively by Ms W Bell and Ms J Nolan, both qualified and experienced town planning consultants who gave evidence in this matter, were virtually identical, extending northwest along Berkley Avenue to its junction with Anzac Highway and some four allotments northeast and southwest of that junction and a similar distance southwest and northeast of the junction of Berkley Avenue and Hillsley Avenue. Both localities also took in residential properties on the other side of a small triangular park opposite the junction of Berkley Avenue and Hillsley Avenue.
6	Hillsley Avenue is the street frontage for the two existing dwellings on the subject land. That part of Hillsley Avenue within the locality defined by the two planning witnesses features mature street trees and rectangular allotments of a size consistent with those forming the subject land. The southeastern side of Hillsley Avenue is dominated by the triangular park referred to earlier. That park is well vegetated and incorporates a toilet block and park furniture. A slightly different allotment layout is evident on the southeastern side of Hillsley Avenue as a consequence of a number of small roads intersecting obliquely with Hillsley Avenue.
7	Dwelling within the locality, particularly those on the northwestern side of Hillsley Avenue, are predominantly detached single-storey dwellings, the majority appearing to date from the 1920’s to 1940’s, and most constructed of masonry with tiled or galvanised roofs. Some single-storey residential flat buildings are evidence, as well as a recently-approved pair of semi-detached dwellings. Most residential properties feature fences, typically post and wire mesh or low hedges, and landscaped front gardens. Several dwellings feature a second level incorporated into the roof space.
8	Setbacks to Hillsley Avenue, particularly on the northwestern side, range between 7.0m to 9.0m, with dwellings typically being sited close to one side boundary with garaging located to the opposite boundary, often to the rear of those dwellings. Dominant architectural features include wide verandahs and pillar supports and gable- ended roof forms.
9	Berkley Avenue is a short street connecting Hillsley Avenue with Anzac Highway. Only four allotments abut this street and three of them present their side boundary to it. On the northeastern side of Berkley Avenue are three double garages, set close to the street alignment, and four single-storey units with a direct frontage to Berkley Avenue are located between the subject land and Anzac Highway. Setbacks along Berkley Avenue range from nil to 7.0m and this creates a sense of enclosure which contrasts markedly with the spaciousness evident in Hillsley Avenue. A prominent feature of the Berkley Avenue streetscape is dense verge planting of established Queensland Box trees.
10	Abutting portion of the land to the northwest is a purpose-built child care centre fronting Anzac Highway. An outdoor children’s play area is located towards the rear of that centre, adjoining portion of the boundary of the subject land. Nearby development fronting Anzac Highway includes commercial developments, dwellings and two-storey flats and apartments. The locality is predominantly residential in nature and with the exception of that part of the locality abutting Anzac Highway, is of moderate to high amenity.

12	Allotments to be created for the new dwellings would range from 220m² to 255m². Private open space in excess of 40m² would be provided for each new dwelling, and some 90m² for the retained bungalow. One garage and one visitor carpark would be provided for each dwelling. All upper level windows would incorporate obscure fixed glass to a height of 1700mm above floor level. Street setbacks would be generally consistent with those of adjoining development, being 9.0m to Hillsley Avenue and 5.5m to Berkley Avenue. The northernmost of the pair of semi-detached dwellings fronting Hillsley Avenue would have its lower level set back 1.5m from Berkley Avenue and its upper level 2.5m.
13	Proposed materials are red brickwork detailing at the building base with sand rendered walls and cream windows and garage doors. Roofing would be Slate Grey Colorbond.
14	The semi-detached dwellings would be two-storey in height, while the row dwellings would be part single and part two-storey. The street elevation of each dwelling would feature gabled roofs to garages and the main dwelling, and balconies to the upper level, opening from bedrooms and providing shelter to the entrances.
15	The row dwellings would be similar in appearance, although they would feature separate porches at ground level and the garages would be an integral part of each dwelling.
16	Dwellings 1 and 2 (the semi-detached dwellings) would comprise a single garage, living area, family room, kitchen laundry and w/c on the ground floor and a main bedroom with ensuite and robe and two additional bedrooms and a separate bathroom on the upper floor.
17	Dwellings 3, 4 and 5 (row dwellings) would comprise a garage, entry, living room, master bedroom and ensuite, laundry, kitchen and family room on the ground floor and two additional bedrooms, an activities room and separate bathroom on the upper floor.
18	Dwellings 3 to 5 would have a private open space area of 48.0m² or thereabouts per dwelling, while Dwelling 1 would have a private open space area of 42.0m² and Dwelling 2, 49.5m².

32	Proposed materials and finishes are, in my view, consistent or compatible with those prevailing in the locality, and while the garages to the row dwellings sit somewhat forward of the remainder of those dwellings, they are set further back than the adjoining dwellings and, being single garages well separated from each other, will not, in my view, dominate the streetscape.
33	Overall, I find that the proposed development is one which will fit comfortably into the established streetscape.
34	I turn now to the other issues raised in these proceedings.

37	A further concern raised in evidence by Ms Crichton was the potential for complaints about noise to be made by occupants of the row dwelling abutting the common boundary with the child care centre.
38	Expert noise evidence was given in this matter by Mr C Turnbull, a qualified and experienced acoustic engineer. Having undertaken noise measurements Mr Turnbull concluded that:

39	While Mr Turnbull noted that anyone occupying the row dwellings nearest the child care centre would do so in full knowledge of the potential for noise from that source, he advised that erection of a 3.0m acoustic fence along the common boundary would ensure the criteria referred to were met, provided also that the two upper-level windows closest to the boundary were also closed. Mr Turnbull noted that other upper-level windows were able to provide adequate ventilation in these circumstances.
40	Ms Crichton, in evidence, advised the Court that, provided the fence suggested achieved the relevant noise criteria and was erected entirely at the appellant’s expense, she considered its erection an acceptable basis upon which to address the problem of potential noise.
41	With the incorporation of the fence suggested by Mr Turnbull, I am satisfied that Zone Principle 4 is met.

43	Ms Bell, in evidence, was critical of the proposal inasmuch as it would, in her view, result in the overshadowing of windows to habitable rooms and the private open space of the existing adjoining dwelling (24 Hillsley Avenue) and also overshadow the private open space of the proposed row dwellings in winter.
44	Ms Nolan, in evidence, acknowledged that the provision of residential frontages to both Berkley and Hillsley Avenues (an outcome sought by the Development Plan) in combination with the narrowness and orientation of the zone and the greater heights envisaged within it, rendered inevitable the limitation of sunlight received in the rear yards of the three row dwellings and 24 Hillsley Avenue, although there would be no adverse effect on 26 Hillsley Avenue, which adjoins the subject site.
45	She concluded that:

51	Having regard to all the above, to what I saw on the view, to all the evidence and to the relevant Development Plan provisions, I have concluded that, on balance, the subject proposal warrants consent. It is a development which falls well short of realising the full development potential delineated in the zone provisions, and is of a design and layout which, in my view, pays adequate regard to its setting, bearing in mind the inevitability of some dichotomy between the height and density of existing development and that envisaged by the zone provisions. In common with most development proposals, it does not satisfy all relevant provisions of the Development Plan but it is sufficiently consistent with those provisions to be supportable.
52	By memorandum dated 28 June the parties were advised of the above conclusion and the reasons for it. The Appellant was invited to make the requisite amendments to the proposal and the parties to discuss and, if possible, agree proposed conditions.
53	The parties came before me again on 27 July 2004. Mr McElhinney tendered an amended proposal plan incorporating the amendments sought in my memorandum, and Mr Leadbeter handed up draft conditions which had been agreed between the parties.
54	It is the decision of the Court that this appeal is allowed and Provisional Development Plan Consent granted to Development Application No. 090/00020/04/DX, subject to the following conditions: