Harrop v District Council of The Copper Coast No ERD-03-67 [2004] SAERDC 7 (23 January 2004)

Last Updated: 28 March 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Commissioner Green

Hearing

24/11/2003 to 25/11/2003, 21/01/2004.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Development Act 1993 - applicant appeal - application for a two-storey dwelling, integrated garage and marina pontoon - Wallaroo (Marina) Zone - refused by the Council - amended proposal details - Land Management Agreement provided additional requirements - erroneous refusal grounds based on incorrect version of Development Plan - amended plans of adequate drafting quality - visual appearance, bulk and design merits of the building considered - amended proposal meets the Development Plan guidelines, the Land Management Agreement requirements and found appropriate in the site and locality context - appeal upheld - Conditional Provisional Development Plan Consent granted.

• Development Act 1993 , referred to.

Representation

Appellant: JOHN HARROP
In Person

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

ERD-03-67

Judgment No. [2004] SAERDC 7

23 January 2004

JOHN HARROP

v

DISTRICT COUNCIL OF THE COPPER COAST

(ERD No. 67 of 2003)

[2004] SAERDC 7

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an Applicant appeal against the decision of the District Council of the Copper Coast ("the Council") to refuse Development Application No. 340/477/2002, for the erection of a dwelling, an integrated garage and a pontoon at Stately Way, Wallaroo Marina.

2. The Council gave as its reasons for refusal:-

"The Proposal is at variance with Residential (Wallaroo Marina) Zone Objective 2 and Principles of Development Control, 3, 4, 20 and 29, Council Wide Residential development Objectives 5, 6, 7 & 9 and Principles of Development Control 9, 10 and 21 and Council Wide Conservation and Heritage Objective 5 and Principle of Development Control 17 in that:

1. There is a lack of articulation and variation in the northern and (side) southern elevations of the dwelling proposed.

2. The roof form of the dwelling proposed as viewed from the marina/rear property boundary is unsatisfactory.

3. There is a lack of eave and verandah treatment to the dwelling proposed generally.

4. The materials to be used in the construction of the external surfaces pf [sic] the dwelling proposed are considered to be bland and unsatisfactory.

5. The garage associated with the dwelling proposed is not setback from the northern (side) property boundary and is not setback behind the western (Stately Way) elevation of the dwelling proposed.

6. The window of bedroom 4 will allow views that may erode the privacy enjoyed by the occupants of the allotment adjoining to the south.

7. No rainwater tanks are provided as part of the development proposed.

8. The dwelling proposed has not been designed with regard to the principles of passive solar design."

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

Date of Application: 15 September 2002 (registered 17 September 2002)

Subject land Address: Lot 383, 56 Stately Way, Wallaroo Marina

Existing use: Vacant land

Proposal: Two-storey dwelling with integrated garage and pontoon to Marina waterway

Relevant Authority: District Council of the Copper Coast

Appropriate Development Plan: Wallaroo (CT) consolidated version 18 October 2001

Relevant Zone/Area: Wallaroo (Marina) Zone - MAP Wal/3; Residential Waterfront Policy Area - MAP Wal/4; and Living Area - MAP Wal/1 (Overlay 1) Enlargement A

Date of Decision: 15 January 2003 (notification dated 28 January 2003)

Appeal lodged: 11 February 2003

4. A series of conferences were held between the parties concluding on 21 July 2003, with no settlement reached.

5. Evidence was provided to the Court by the Appellant, an excavator and qualified fitter and turner; and by Mr D Hutchison MPIA, a qualified and experienced consulting town planner who has been providing such services to the Council or its predecessor for over 10 years.

6. The Court viewed the subject land and the locality on Monday, 24 November 2003 in the presence of the parties.

Subject Land

7. The subject land is contained in Certificate of Title Volume 5870 Folio 536, and comprises Lot 383 DP 59143. It is not Lot 382, 58 Stately Way, nor the dimensions and site area erroneously referred to in Mr Hutchison's report to the Council (pages 20-27 Exhibit R1) and in his statement of evidence Exhibit R2.

8. The allotment, like all in the Marina, is subject to a Land Management Agreement pursuant to Section 57 (2) Development Act 1993. A draft of such agreement was attached to Mr Hutchison's statement in Exhibit R2.

9. The land has a frontage to Stately Way of 9 metres, side boundaries of approximately 54 metres extending into the Marina waterway and with a rear boundary of some 32 metres in the Marina waterway, providing a total site area of 1,114 square metres or approximately 770 square metres excluding the water (Mr Hutchison's calculation). The land is vacant with no vegetation thereon and it is relatively level, and on the evidence with the highest point at AHD 5.8.

The Proposal

10. The Proposal has been amended post the Council's decision and the plans before the Court are those in Exhibit A1 dated September 2003. The Proposal is generally as described by Mr Hutchison in Exhibit R2 at pages 4 and 5.

11. The plans are not of high quality or standard. However, they are not so deficient to render a decision invalid. They are to scale and except for some inconsistencies and minor errors are sufficient upon which to make a planning assessment of the proposal.

12. In addition to the plans, the Appellant in evidence and submission offered further amendments to the proposal in the hope of gaining the consent of the Court. These included:-

•	fitting of opaque glazing to the window in bedroom 4;
•	provision of a rainwater tank at grade or underground and in the order of 5,000 litres;
•	provision of eaves some 300 mm wide to the south-eastern and north-western elevations of the building together with roll-up shade blinds to north-west facing windows;
•	in lieu of the extruded moulding to be painted a contrasting colour on the tilt-up panel walls, an alternative double inlay of some 600 mm in width providing a banding effect to be painted a contrasting colour;
•	garage roof to have gable end to the side (not hipped);
•	general roofing of the dwelling could be increased in pitch to 30 degrees; and
•	the narrow courtyard area on the north-western side to be utilised for clothes drying and rubbish bins, with potential rear door access to the courtyard from the internal passageway.

13. The two-storey building has wall heights of some 6 metres and an overall height of 7.5 metres to the ridgeline with varied setbacks, some 1.2 metres at the closest points and with site coverage of less than 30 percent (excluding the water area from site area).

The Locality

14. The locality is that part of the surrounding area of direct influence on the subject land and that the proposal is likely to impact on, to a notable degree. It is relevant to consider the position and characteristics at the time of consideration and decision making on this matter and not what might, hypothetically be the case in five or more years time as was the approach taken by Mr Hutchison. He has erred and adopted the wrong approach with respect to the locality.

15. I find the locality for this matter to be based on visual considerations and to include almost all of the Marina (Wallaroo) Zone and some areas on the fringe of that.

16. The locality contains over 400 allotments, many new roads, new Marina waterways, reserve areas and perhaps (estimate only) some 50 to 60 newly erected dwellings. Visible to the west are the older holiday house/shack areas on the beachfront. Most of the dwellings erected are single dwellings but there are at least two pairs of semi-detached dwellings. Most dwellings are also single storey but at least one third are of two-storey form. Dwelling design, form, siting, setbacks, style, materials and colour are varied. Most appear to meet the numerical guidelines of the Land Management Agreement and the numerical provisions of the relevant Development Plan, but there appear to be a number of departures from qualitative guidelines in more recent versions of the Development Plan.

17. The side setbacks for comparable two storey buildings are often in the one-two metre range. The height of two storey buildings appears to be up to 9 metres with walls of up to 6 metres. Upper level windows to side boundaries are mostly clear glazed with perhaps only a few raised sills or with opaque glazing. Garages are commonly on, or close to side boundaries, some with gabled ends, others with hipped roofs away from the boundary. There is minimal landscaping (trees or gardens) evident at this time given the recent nature of the development, but in due course such vegetation would be expected to soften what is now a harsh, barren, dusty new sub-division. Adjoining allotments to the subject land are vacant, the nearest dwelling being of two storeys some five allotments to the northwest.

18. Visual amenity levels are moderate only, with new built form of mixed style and appearance, not yet enhanced by landscaping and vegetation. Views and the coastal atmosphere and proximity are positives. The character of the locality is of a newly developing residential marina estate.

Relevant Development Plan Provisions

19. I have considered the various provisions referred to by Mr Hutchison and counsel for the Respondent and I find the following to be the relevant provisions in the Development Plan of 18 October 2001, for assessment of this specific matter:-

YORKE PENINSULA

Objectives: 1 and 25

COUNCIL WIDE

Objectives: 1 and 2;

Principles of development control: 1, 2, 3(c), 10, 51, 93 and 97

MARINA (WALLAROO) ZONE

Objectives: 1 and 2;

Proposal: (b);

Principles of development control: 1, 2, 3, 4, 14, 15 and 16

RESIDENTIAL WATERFRONT POLICY AREA

Objective: 1;

Principles of development control: 1, 2, 4, 5, 6, 7, 8, 9 and 10.

20. It is highly relevant to note that when Mr Hutchison advised and reported to the Council (and the Council itself in its refusal reasons), regard was given to the wrong Development Plan, namely a later version of the Development Plan dated 26 September 2002. That is an error of law and it appears to have coloured Mr Hutchison's and the Council's views on this application. This error was acknowledged at the hearing.

Planning Assessment

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

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

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

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

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

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

•

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

•

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

22. I have also taken into account the provisions of a Land Management Agreement (as attached to Exhibit R2), pursuant to section 57(12) of the Act, and reference to it in clause (b) under the heading Proposals for the Zone, in considering this development. I was not directed to any clauses that the proposal breached.

23. I am also mindful of the "reference point" that this decision may provide for applicants in the future, as put by counsel for the Respondent. However, it may only be useful for proposals considered against the policies in the Development Plan of 18 October 2001, and not those for which more recent Plan amendments are relevant and which provide more detailed design guidance.

24. It is acknowledged from past case law, that compliance with the quantitative provisions of the relevant Development Plan, does not constitute primacy over qualitative provisions, nor that if the former are met there will be sufficient compliance with the latter. I have considered and weighed up all relevant provisions in the relevant Plan as referred to above. I also agree that it is not the approach to find and rely on "poor examples" of development design in the locality and seek to rely on those aspects in the design of new proposals. However, it is relevant to consider the characteristics of all development including the so-called poor examples, in the locality context.

25. It is the case, as agreed by Mr Hutchison, that the amended proposal meets all quantitative provisions in the Development Plan and the Land Management Agreement. A two storey dwelling is acceptable in principle on the site, in the locality, the Zone and the Policy Area.

26. Issues raised by Mr Hutchison and the Council regarding desirability of rainwater tanks, of eaves and other energy saving design features, whilst laudable, are not found in the relevant Development Plan (refusal reasons 3, 7 and 8). Reason 6, dealing with limiting overlooking from the windows of bedroom 4, to vacant allotments to the south (with future dwellings probable), can be easily dealt with by a condition of consent or amended plan as offered and agreed to by the Appellant. In any event, prior to the development of any adjoining or near dwellings, this issue carries limited importance.

27. The criticism and shortcoming cited in reason 5 is met by the amended proposal Exhibit A1.

28. Criticism of the plan quality and inconsistencies, internal natural light availability, and functional aspects can all be dealt with by amendments as offered by the Appellant, or in detailed drawings for subsequent building rules consent.

29. Overshadowing to the south-east particularly is inevitable from a two storey, up to 9 metre building meeting the side setback guidelines and with the allotment orientation fixed. This was acknowledged by Mr Hutchison. It is unlikely to be significant or unreasonable in the local context.

30. The proposed pontoon lacks detail but in principle it was acceptable to the Council and is acceptable to the Court.

31. Hence, the remaining issues from the Council's refusal reasons (and the opinion of Mr Hutchison) and assessment of the relevant Development Plan, relate to the visual appearance and design merits of the two storey dwelling - its wall materials, roof form, articulation and variation of walls on the north-western and south-eastern elevations, and perception of bulk of such walls.

32. The relevant Development Plan guidelines are:

"YORKE PENINSULA

.....

Objective 1: Orderly and economic development.

.....

This will achieve economy in the provision of public services and will be conducive to the creation of a safe, convenient and pleasant environment in which to live or holiday.

......

[and similar to Council Wide Principle 3(c)]

.....

Objective 25: The amenity of localities not impaired by the appearance of land, buildings and objects.

.....

[and similar to Council Wide Principle 51 and Zone Principle 14]

.....

MARINA (WALLAROO) ZONE

.....

Objective 2: A zone in which the form and character of development, and the mixture of activities, creates an attractive urban waterfront and maritime environment.

PRINCIPLES OF DEVELOPMENT CONTROL

.....

3 Building design should feature:

(a) hipped or gabled roof forms;

(b) visible roof slopes pitched at between 22.5 degrees and 30 degrees;

.....

4 Development should incorporate building materials consistent with a "maritime heritage" theme, in supporting with Wallaroo's historic role as a port town and should comprise:

(a) walls and cladding - stone, or cement rendered, or bagged brick, masonry, timber or other like materials;

.....

(d) roofs - colourbond;

.....

16 A minimum of 10 percent of the area of each development site should be landscaped to complement and enhance the character and amenity of the area, define open spaces, and provide screening, shade, and shelter.

Car parking, driveways, footpaths and any other paved areas shall not be included in the calculation of the 10 percent requirement.

.....

Residential Waterfront Policy Area

1	Development in the Residential Waterfront Policy Area should comprise dwellings of a range of types not exceeding two-storeys in height.

.....

5 Residential buildings, together with associated outbuildings, should not cover more than 50 percent of the site area of the development.

6 For all types of residential development:

.....

(b) buildings should be sited so as not to cause overshadowing or cutting off of light; and

(c)	buildings should maintain set-backs of at least five metres from any public road and 1.2 metres from any side boundary.

7 Dwellings on allotments which abut or overlook any waterway or public open space should be designed so that living areas face onto those waterways or open spaces, whilst the rear of such dwellings, where the rear abuts a public road, should be designed to preserve and enhance the

character and amenity of the road space.

8 Residential outbuildings should be designed and sited as an integral part of the dwelling, and should be constructed of materials the same as, or similar in appearance to, those used for the dwelling."

(my underlining).

33. Having careful regard to the current and rapidly developing residential marina character and built form characteristics, and to the current appearance of the locality, I am in no doubt that the proposal complements and is consistent with the desired urban waterfront marine character. It will be reasonably attractive (measured in the local context), it will ensure the pleasantness of the area as a place in which to live is maintained, and it will not impair amenity of the locality by reason of its appearance. All external materials (including painted concrete wall panels, similar to cement rendered masonry) and colours, roofing pitch, articulation of walls and windows (with additional offered on the north-western side by the Appellant), horizontal banding treatment to "break-up" a so-called bland appearance of the walling, site coverage, height and varied side setbacks and appropriate front and rear setbacks (including all of the characteristics that go to make up "bulk"), sufficiently meet the relevant Plan guidelines and are acceptable.

34. I cannot afford weight to the opinions of Mr Hutchison with regard to building bulk or design merits shortcomings, given the above assessment, the Development Plan guidelines and the locality context, a reality that cannot be ignored even though a large number of the designs of dwellings built were not supported by Mr Hutchison and in his opinion they were poor examples not worthy of replication or reliance. It is inappropriate for an expert planner to apply personal views with respect to style and design features, in the absence of specific criteria in the Development Plan, even where such guidelines are somewhat limited.

Conclusions

35. Whilst the plans presenting the proposal have some deficiencies, they are sufficiently accurate and clear to enable a decision to be made at the planning assessment stage. A Council or this Court cannot insist on plans being professionally drawn, although that usually helps full and proper appreciation of the proposal.

36. The Appellant appears to have been the recipient of a set of unfortunate circumstances and treatment with regard to errors and misinformation by or from Mr Hutchison on behalf of the Council, and together with the issue of plans quality, these appear to have coloured the assessment of his application.

37. Subject to confirmation, incorporation and proper detailing of several further offerings from the Appellant and having regard to the applicable Land Management Agreement guidelines, I conclude that the proposal is sufficiently in accord with the relevant Development Plan, assessed as a whole and in the locality context, to warrant the granting of conditional Provisional Development Plan Consent.

38. By Memorandum dated 5 December 2003, I invited the Appellant to make further minor amendments to the proposed plans.

39. At the resuming hearing a set of plans, 4 sheets, were tendered and marked Exhibit A3. These provided for:

•	Bedroom 4 window (south-eastern elevation) - fixed opaque glazing to 1.6 metres above floor level with clear and openable glazing above;

•	a rainwater tank to be located at ground or below ground level and of 2,300 litres capacity indicated on the site plan;

•	eaves of 300mm added to the north-western and south-eastern sides and elevations of the dwelling;

•	the line of extruded moulding in the concrete wall panels to be painted a contrasting colour to the beige wall colour with note added to the elevations to that effect;

•	tilt-up wall panels to be painted beige, with textured paint with note added to the information panel on the plan;

•	the narrow courtyard on the north-western side widened to 1.8 metres and to be utilised for clothes drying, rubbish bins etc;

•	a new external door to the courtyard referred to above now shown from the central passage;

•	two new small windows incorporated at the upper level on the north-western elevation, to comprise a high-level window to the stairwell and high-level window with sill 1.6 metres above the finished floor level to bedroom 3;

•	addition of a fireplace in family room and chimney, lower in height than the ridgeline;

•	landscaping detail added to an enlarged site plan listing species, location and numbers for the front landscaped area, the south-eastern side courtyard area and in the rear (marina side) landscaped area;

•	pontoon details provided and shown on elevations;

•	roof to garage with gable not hipped end; and

•	minor adjustment to roof pitch and ridge height increased to 7.8 metres.

40. These amendments are consistent with most of the conclusions of Mr Hutchison, except with respect to wall and roof heights and garage roof form.

41. I also invited the Council to prepare a list of desired conditions and these were discussed at the resumed hearing and the parties made further submissions. There was general agreement thereon except for minor elements and -

•	the Council's desire to reduce wall and ridge height to 5.4 metres and 7.2 metres (from 6 metres and 7.8 metres);

•	the finished floor level of AHD 5.8 sought by the Council, reduced from AHD 6.0 metres; and

•	Council's preference for a hipped roof to the garage, not a gabled end.

42. I cannot support the Council's position regarding height and floor level reductions given the Plan guidelines, the Land Management Agreement criteria and the locality context. In addition, and on reflection, given Zone Principle 3 and for the other reasons submitted by the Appellant, I find that a gable end for the garage roof (as shown on Exhibit A3) is acceptable.

Decision

43. The appeal is upheld on the basis of amended plans and the decision of the Council reversed. Provisional Development Plan Consent is granted subject to the following conditions:

1.	The development shall be established in accordance with the amended details and plans submitted to the Court and marked Exhibit A3, unless varied by the following conditions.

2.	A further plan shall be provided to Council prior to the issue of Development Approval detailing the location of the septic tank, which shall be in accordance with the SA Health Commission Code for Waste Control Systems under the Public and Environmental Health Act 1987.

3.

A further plan shall be provided to Council prior to the issue of a Development Approval accurately detailing the location and specifications of the stormwater disposal system. (The Applicant should note that stormwater is to be directed to the street watertable and not directly disposed of to the Marina.)

4.

In addition to the landscaping shown on the amended plan marked Exhibit A3, the driveway shall be re-aligned to provide a landscaping strip of 1 metre width along the western boundary of the subject land forward of the dwelling, which shall be planted to the reasonable satisfaction of the Council with appropriate trees and shrubs.

5.	The driveway and paved areas identified on the proposal plans shall be surfaced with concrete or paving bricks prior to the first occupation of the dwelling.

6.	All landscaping shall be established within 6 months after the first occupation of the dwelling and shall be maintained and nurtured at all times, with any diseased or dying plants being replaced immediately.

7.	The total height of the side walls of the approved dwelling shall be no greater than 6.0 metres above the finished floor level and the height of the roof shall not exceed 7.8 metres.

8.	The finished ground floor level of the building shall be no higher than AHD 6.0.

9.	All external materials of construction shall be new and not second-hand, unless otherwise agreed with the Council in writing prior to the use of such materials in the construction of the approved dwelling.

44. There will be an order accordingly.