Artech Properties Pty Ltd v City of Burnside [2004] SAERDC 89 (5 November 2004)

Last Updated: 9 November 2004

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ARTECH PROPERTIES PTY LTD v CITY OF BURNSIDE

Judgment of Commissioner Hodgson

5 November 2004

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - application to construct residential flat building comprising six dwellings with associated carparking and landscaping - Office Zone - refused by Council - appeal - whether residential use less consistent with Zone objective than office - relevance of Zone title to question of desired land uses - whether proposal "medium density" - amenity and security of proposed dwellings - compatibility with offices - proposal generally consistent with relevant provisions of Development Plan - provisional development plan consent granted with conditions.

Development Act 1993, referred to.

Whitington & Ors v City of Burnside & Domain Project Development Pty Ltd [2003] SAERDC 13; City of Mitcham v Freckmann & Ors [1999] SASC 234; (1999) 74 SASR 56, considered.

ARTECH PROPERTIES PTY LTD v CITY OF BURNSIDE
[2004] SAERDC 89

(ERDC No. 101 of 2003)

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This is an appeal by Artech Properties Pty Ltd ("the Appellant") from the decision of the City of Burnside ("the Council") to refuse to grant Provisional Development Plan Consent to a Development Application by the Appellant to construct a residential flat building comprising nine dwellings, associated carparking and landscaping on land at 169 Fullarton Road, Dulwich. Subsequent to the decision of the Council to refuse the subject proposal, the latter was amended to reduce the number of dwellings proposed from nine to six. At the commencement of proceedings Mr Botten, for the Appellant, advised the Court that it was the amended plans upon which the Appellant proposed to rely in these proceedings.

The Subject Land and Locality

2	The subject land is located on the eastern side of Fullarton Road, approximately midway between Kensington Road and Greenhill Road. Other than a small section of the Fullarton Road frontage between Grant Avenue and Swaine Avenue, which is zoned "Community", the entire length of this section of Fullarton Road is zoned "Office". The Office Zone extends westward along Greenhill Road to its junction with Glen Osmond Road.
3	Dominant build form elements within this section of Fullarton Road and Greenhill Road are the former Queen Victoria Hospital building at 160 Fullarton Road and the former ETSA building at 220 Greenhill Road, both of which have now been converted to apartment buildings. The former Queen Victoria Hospital building is nine storeys in height and the former ETSA building fourteen storeys in height. At 207 Greenhill Road a three-storey building containing 10 dwellings has been constructed, and there are 3 three-storey dwellings at 136 Fullarton Road.
4	Built form in the locality is predominantly two and three-storey office buildings with undercroft carparking built close to the street frontage and often spanning the width of the site or containing small side setbacks. A small number of single-storey offices is also in evidence. Some older dwellings have been converted to office use.
5	A number of low-rise residential flat buildings of between one and three storeys have also been developed since the 1960’s. Mr S Holmes, a qualified and experienced town-planning consultant who gave evidence in this matter, estimated that out of a total of 66 sites along the defined section of Fullarton and Greenhill Roads, 16 were devoted to residential use, this representing a total of nearly 300 dwellings.
6	The subject land is an allotment of regular shape, having a width of 21.3m and a depth of 42.7m producing a total area in the vicinity of 910m2. On the land is presently located a single-storey detached dwelling which is used as a residence. The site is essentially flat and contains no distinguishing topographical or vegetative features. The land is adjoined to the north and south by single-storey former residences converted to offices, to the east by land used for carparking associated with offices at 167 and 168 Fullarton Road, and to the west, a service road with a mound separating this from the principal carriageway of Fullarton Road. West of Fullarton Road is the City of Adelaide Park Lands. Recently, the Council has approved an office building for 167 and 168 Fullarton Road, this being a site on the corner of Fullarton Road and Parkstone Avenue.
7	Mr Holmes did not define a locality for the purpose of his evidence, although it can be inferred from that evidence that he did not see the locality as extending beyond the Office Zone. Ms W Bell, another qualified and experienced town planning consultant who also gave evidence in this matter, defined a locality which extended from Grant Avenue in the north along the Fullarton Road frontage to the junction of Swift Avenue and Fullarton Road, taking in the whole of the Office Zone along that frontage but also extending a short distance up Parkstone Avenue to include some 8 detached dwellings located to the immediate east of the Office Zone boundary.

The Proposal

8	The proposal entails the construction of a three-storey building over an undercroft carpark, the finished height of the building being 12.5m. The building comprises a residential flat building containing 6 residences. Two different dwelling designs are proposed, the larger comprising open lounge/dining/kitchen, 3 bedrooms, a study, a library and 3 bathrooms, this design having a floor area of 279.9m2. The smaller design comprises open lounge/dining/kitchen, 3 bedrooms, a study and 2 bathrooms, and has a total floor area of 199.2m2. Extensive balconies, totalling 108.3m2 for each of the large residences and 52.1m2 for each of the smaller residences, are also proposed. One larger and one smaller residence are proposed for each of the three upper levels, with all residences fronting Fullarton Road. Common facilities would include a lift, stairwell and lobby to each floor, entry lobby, dedicated storage areas, garbage receptacles, and common garden areas of approximately 250m2. Eighteen carparking spaces are proposed to serve the six residences.
9	Access to the ground floor lobby would be obtained via a pathway leading from the service road to an entrance gate set back some 10m from the frontage, behind which a secure walkway would extend a further 20m to the lobby.
10	Access to the undercroft carpark would be by way of a ramp leading from the service road. Towards the rear of the carpark would be an entrance to, and at the same level as, the lift lobby. The carpark would be secured by a timber-slatted panel-lift door. Two undercover visitor carparking spaces would be provided between the carpark entrance and the front of the building, with a pedestrian ramp providing access from the northernmost of these spaces to the pedestrian entrance pathway.
11	Landscaping of the site would comprise retained gardens on either side of the ramp entrance to the undercroft, along the northern side of the pedestrian entrance path, and at the rear of the building at ground level. It is also proposed to retain an existing tree close to the street frontage.
12	Proposed materials would include rendered masonry walls, natural anodised aluminium windows, opaque glass balustrading with stainless steel handrails to the balconies, glass-clad concrete blade columns on the front wall, obscure glass, steel and fine timber-slatted screens above the balustrades to balconies to a height of 1600mm above floor level in the vicinity of the pebble gardens on the southern, eastern and central northern elevations, natural anodised aluminium louvres to part of the northern elevation at the front of the building, and timber-slatted screens to the pedestrian entrance and the undercroft carpark at ground level.

Development Plan Provisions

13	The subject land is located within the Office Zone as depicted on Maps Bur/3 and Bur/6 in the Development Plan for the City of Burnside dated 12 December 2002. The objectives for that zone are as follows:

OFFICE ZONE

"Objective 1: A zone accommodating professional and commercial offices with dwellings at medium-density where sites or buildings are suitable."
"Objective 2: Development which minimizes adverse effects on adjoining residential areas."

14	Relevant zone principles are:

"Principle 1: Development undertaken in the Office Zone should be:

(a) professional and commercial offices not exceeding 2000 square metres in total floor area; and

(b) dwellings at medium densities where sites and buildings are suited to providing dwellings with a satisfactory level of amenity, convenience and security for residents."

"Principle 2: Development should be located and designed to:

(a) set buildings back not less than three metres from the Fullarton or Greenhill Roads boundaries of any site to provide for landscaping;

(b) minimize overshadowing of premises in an adjoining Residential Zone or Historic (Conservation) Zone by limiting the height of any building adjacent to the boundary of such zones to a dimension equal to the distance that the building is set-back from such zone boundaries;

(c) avoid overlooking of premises in an adjoining Residential or Historic (Conservation) Zone;

...."

"Principle 3: Where dwellings are developed each dwelling should be provided with:

(a) an outdoor space either on ground level or on a balcony or similar structure of not less than ten square metres with a minimum horizontal measurement of 1.8 metres in any direction;

(b) clothes laundering and drying facilities for each dwelling;

(c) lighting and such other measures as may be required to provide reasonable security for residents and vehicles where undercroft car parking is utilized;

(d) a mix of secured car parking spaces for residents and unrestricted access car parking spaces for the use of visitors and other users of the premises at a ratio appropriate to the nature of the development; and

(e) a secure storage compartment of not less than 3.5 square metres in floor area for each dwelling suitable for the storage of household and personal goods in such location as will facilitate reasonable accessibility."

"Principle 4: Undercroft car parking areas should be effectively screened from view from any public road by the use of landscaping or other means which enhance the external appearance of the land and buildings."
"Principle 5: The safe and convenient movement of vehicles should be facilitated by:

(a) limiting the number of access and egress points onto Fullarton or Greenhill Roads to those required to accommodate the traffic generated by the development they serve;

(b) access and egress points located and designed in a manner which minimizes traffic hazards, queuing on roads and interference with the function of road intersections, junctions and traffic control devices; and

(c) the linking of car parking areas where practicable."

15	By virtue of the operation of Zone Principles 6 and 7, a residential flat building is a consent form of development within the Office Zone.

Assessment

16

Mr Hilditch, for the Council, submitted that the primary intent of the Office Zone was to accommodate office uses. He acknowledged that, consistent with Zone Objective 1 and Principle 1, there might be sites within the zone suitable for residential development, but submitted that what would render a site suitable for residential development would be its location, as distinct from the manner in which the residential development was designed. Suitable locations might be those abutting residential development and/or with a frontage to a residential street, or alternatively, sites which were not suitable for office development because of, for example, their dimensions or their physical relationship with abutting development. The subject land was inherently unsuitable for residential development inasmuch as it fronted an arterial road, was surrounded by existing or approved office development, and was well-suited to development for office purposes. Its use for residential purposes would remove one of a limited number of opportunities in the Council area for an office development of up to 2,000m2.

17

In support of these submissions, Mr Hilditch referred to the evidence of Ms W Bell and Mr A Elia. Ms Bell’s evidence was that the subject proposal did not satisfy Zone Objective 1, for the following reasons:

(i) it provided poor amenity for occupants of the proposed dwellings because of limited solar access, poor cross-ventilation, the remoteness from Fullarton Road of the entry to the lobby, noise generated by Fullarton Road traffic and a restricted outlook from northern and southern balconies;
(ii) it would result in the overlooking of residential premises to the south-east;
(iii) it provided a poor interface with the pedestrian environment; and
(iv) it did not demonstrate compliance with environmental design provisions relating to stormwater management and energy efficiency.

18	In the course of cross-examination Ms Bell conceded that, on the basis of a report by Mr C Turnbull, an acoustic engineer, she was now satisfied that the proposal incorporated acoustic attenuation measures sufficient to satisfy the relevant EPA standards. She also conceded that there would be limited opportunities for overlooking of residential premises to the south-east, and that her concerns about cross-ventilation were relatively minor.
19	Ms Bell remained critical of the proposal’s failure, in her opinion, to relate appropriately to the pedestrian environment by having an active street frontage rather than a podium and carpark entry at that level. There would be, in her view, inadequate passive surveillance of the street, and the proposal, while better than some nearby office developments, did not contribute sufficiently to the achievement of a safe, secure and pleasant pedestrian environment.
20	Ms Bell was also critical of the relative remoteness of the proposed development from centre-type facilities, the nearest shops, in Dulwich Avenue, being some 900m away. In her opinion, if residential development was to occur within the Office Zone, a richer mix of land uses, including shops, was required in that zone.
21	Mr Elia owns a significant number of office developments within the locality. His evidence was that the development of residential apartments in close proximity to offices would result in conflict between the two uses of land and in greater difficulty attracting prime tenants than would be the case were the zone to accommodate office development only.
22	The evidence of Mr Holmes was that the proposal, with a site area/dwelling of 151.7m2, was properly characterised as "medium density" as that term was used in Zone Objective 1. The subject land was currently in residential use and was eminently suitable for the proposed development, being separated from Fullarton Road by a service road, having an outlook over the Park Lands, and being close to CBD shops and employment. Moreover, the scale and appearance of the proposal was in keeping with that of development which had occurred in the locality in recent years, and its density was lower than that of a number of nearby residential developments.
23	In Mr Holmes’ opinion, occupants of the proposed development would enjoy adequate security with secure gated entry to both the lobby and the carpark, security lighting, and passive surveillance both from the dwellings themselves and from passing traffic on Fullarton Road. Access would be via a minor service road serving only 5 properties. The substantial setback from Fullarton Road, in combination with the use of laminated glass, doors and window seals and wall, floor and ceiling insulation would maintain noise at acceptable levels, and, while the approved development to the north would restrict solar access, acceptable solar penetration would be achieved during the winter months because of the westerly orientation of all proposed dwellings.
24	With reference to overlooking, Mr Holmes’ evidence was that measures incorporated into the proposal would be sufficient to ensure acceptable levels of privacy both for occupants of the proposal and of nearby properties, albeit he conceded that it might be necessary to provide screening below balcony roofs to address overlooking from higher levels of an adjoining building.
25	Further evidence on design issues was given by Mr J Nelson, a qualified and experienced architect. Mr Nelson, whose evidence was that he had not been involved in the design of the proposal, was of the opinion that the internal design and external appearance of the proposal were appropriate to a residential development, and would create an attractive and workable living environment for its occupants. Mr Nelson agreed with Mr Holmes as to the desirability of additional screening to address potential overlooking from upper levels of adjoining buildings.
26	Having regard to the evidence in this matter, I am satisfied that the proposed development is appropriately designed and satisfies Zone Principles 2, 3, 4 and 5. It will, in my view, provide a satisfactory level of amenity and security for occupants while having minimal adverse effects on neighbouring properties. That being the case, it also satisfies the more general, Council Wide provisions of the Development Plan relating to residential development, bearing in mind the fact that the amenity expectations of occupants of medium density residential developments in an Office Zone must of necessity be lower than those of occupants of medium density residential developments in residential zones.
27	The fundamental issue in this matter is whether the proposed use of the subject land for residential purposes is appropriate, having regard to the Development Plan provisions for the zone. Mr Hilditch submitted that the Office Zone was unique amongst zones in the Burnside Council area inasmuch as its primary intent and purpose was to accommodate professional and commercial offices to the exclusion of other types of commercial uses. It was the only zone in Burnside able to accommodate offices of up to 2,000m2 in area, and enjoyed a frontage to heavily-trafficked arterial roads. Consistent with Council Wide Principles 2(a) and 3, Mr Hilditch submitted, for the proposal to succeed it had to be established that the land was suitable for its intended use, and that the proposed development would not interfere with the effective and proper use of other land.
28	Mr Hilditch acknowledged that there might be sites within the zone suitable for residential development, but submitted that these were likely to be sites abutting residential zones, sites which did not abut an arterial road, or sites which, because of their size, configuration or physical relationship with adjoining development, were unsuitable for office development. He also speculated on the possibility that the use of the word "with" following "offices" in Zone Objective 1 suggested that what was contemplated in the zone was some residential development being incorporated with office developments on appropriate sites. Finally, Mr Hilditch submitted that little weight should be given to the substantial number of dwellings created within the former ETSA and Queen Victoria buildings, both of the latter being "historical aberrations".
29	Mr Botten, for the Appellant, submitted that the interpretation of Zone Objective 1 postulated by Mr Hilditch flew in the face of Zone Principles 1 and 3, which clearly contemplated medium-density residential development as a use of land in its own right. Furthermore, it flew in the face of the submission by Mr Hilditch that there was an inherent incompatibility between offices and dwellings.
30	Mr Botten further submitted that the zone title could not be given weight as indicative of the primary purpose of the zone, supporting this submission by reference to a decision of this Court: Whitington and Ors v City of Burnside and Domain Project Development Pty Ltd [2003] SAERDC 13, in which the Court held that, where the objectives for a zone referred to certain uses being envisaged in that zone, the fact that some of those uses were not referred to in the zone title did not render them less desirable in the zone than a use or uses included in the zone title.
31	In Mr Botten’s submission, no reasonable interpretation of the zone provisions would result in a conclusion that residential development was secondary to office development, or less desirable than office development. The list of non-complying forms of development did not include Residential Flat Buildings or Row Dwellings, and Zone Objective 1 and Principles 1 and 3 clearly contemplated medium density residential development on suitable sites and in suitable buildings.
32	The primary questions to be resolved, Mr Botten submitted, were these:

(a) was the proposal "medium density" ?

(b) was the subject land a site which was "suited to providing dwellings with a satisfactory level of amenity, convenience and security for residents"?

33	Referring to the evidence of Mr Holmes and Mr Nelson, Mr Botten submitted that the answer to both questions was "yes", and that the design and appearance of the proposed development would in fact provide dwellings which would provide the amenity, convenience and security for residents sought by Principle 1(b).
34	To determine whether the proposed use of the subject land is appropriate, it is first necessary to determine the "overall intent and purpose and desired character of the zone": City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56. Reading those provisions as a whole, and having regard to the views expressed by this Court in Whitington, it seems to me that the Office Zone provisions do not afford primacy to professional and commercial offices over medium density dwellings, save in this respect: subject to satisfying Zone Principles 2, 4, and 5, office development of up to 2,000m2 can occur on any site within the Office Zone, whereas dwellings can be developed only where they are "medium density" and where they are able to provide "a satisfactory level of amenity, convenience and security for residents", the later calling up Zone Principle 3 and also, to the extent they are relevant, Council Wide provisions relating to residential amenity. Satisfaction of these requirements may not be possible on all sites within the Office Zone, but I can find nothing in the Development Plan to support the proposition advanced by Mr Hilditch, that only sites abutting residential zones, sites which did not abut an arterial road, and sites which were inherently unsuitable for office development were suitable for residential development. Furthermore, I agree with Mr Botten that a reading of Objective 1 which confined the development of dwellings in the zone to schemes which incorporated some dwellings into an office development would fly in the face of Zone Principles 1(b) and 3.
35	With reference to whether the proposal was "medium density", Ms Bell expressed the view, in evidence, that the proposal sat somewhere between the high end of medium density and the low end of high density. Mr Holmes gave evidence that he had undertaken a comparative analysis of residential densities across Metropolitan Adelaide, which demonstrated that site areas/dwelling in the case of three recent residential apartment developments in the CDB were, respectively 9.5m2, 6.0m2 and 4.3m2. By comparison, the site areas/dwelling for the subject proposal were 151.7m2, and were therefore properly characterised as "medium density". Mr Holmes reinforced this conclusion by reference to four other residential apartment developments on Fullarton Road, which had site areas/dwelling ranging from 102.0m2 to 146.7m2.
36	I find the detailed analysis undertaken by Mr Holmes more persuasive than the unsupported views expressed by Ms Bell. Having regard to all the evidence I am satisfied that the proposal is properly characterised as "medium density", and that, subject to some minor amendments which were canvassed in the course of the hearing, the proposed development is one which will provide a satisfactory level of amenity, convenience and security for residents as required by Zone Principle 1(b), and will have minimal adverse effects on adjoining residential areas.
37	Notwithstanding the concerns expressed by Mr Elia, which appear to be founded on commercial rather than planning considerations, I am not persuaded that the proposal will interfere with or prevent the ongoing or future use of adjoining or nearby land for office purposes. The co-existence of residential and office developments in inner urban areas is commonplace in cities around the world, and as I have said earlier in this judgment, occupants of residential developments set amongst offices have no reasonable basis upon which to expect the levels of amenity characteristic of purely residential zones.
38	Having regard to all the above, to my observations on the view, to all the evidence and to the relevant provisions of the Development Plan, I have concluded that the subject proposal warrants consent, subject to amendments as follows:

(1) modification of the balcony treatment at the north-east corner of the development, as depicted on Exhibit A10 in these proceedings;
(2) provision of louvred screens below the balcony roofs to the northern and southern elevations, to screen views into the proposed development from higher levels of adjoining development;
(3) incorporation of the lighting and security measures referred to on Page 5 of the Statement of Evidence of Mr Holmes, forming Exhibit A7 in these proceedings;
(4) incorporation of the acoustic attenuation measures recommended by Mr C Turnbull in his Statement of Evidence forming Exhibit A5 in these proceedings; and
(5) incorporation of onsite stormwater management measures.

**************************

39	In response to a memorandum in the above terms, the Appellant produced amended proposal plans, which were tendered as Exhibit A11. The Respondent handed up a set of draft conditions which, with minor modifications, were agreed by the Appellant.
40	The decision of the Council is reversed. Provisional Development Plan Consent is granted for Development Application No. 180/01478/02/C3, subject to the following conditions:

1. The development shall be undertaken in accordance with all drawings, specifications or other documents submitted to Council that are relevant to the approval of Development Application No. 180/01478/02/C3, and to the extent varied by Exhibit A11, except where varied by the following conditions.

2. The bench level shown on the approved plans is to be verified by a licensed surveyor. Prior to the pouring of concrete, a certified plan illustrating these levels is to be provided to Council. Any variation to the approved levels must be approved, in writing, by Council prior to the pouring of concrete.

3. The establishment of all landscaping shall be undertaken within 6 months of the completion of the building and thereafter shall be maintained in good health and condition to the satisfaction of Council.

4. All carparking areas, driveways and vehicle manoeuvring areas shown on the approved plans shall conform to Australian Standards and shall be constructed, and drained in accordance with sound engineering practice to the reasonable satisfaction of Council. Car parking bays shall be permanently delineated prior to the occupation of the development herein approved to the reasonable satisfaction of Council.

5. Adequate details of stormwater management, including detention, retention (including size and location of a stormwater retention tank(s)) collection, use and discharge to the street watertable, which will avoid nuisance or inconvenience to all adjoining properties, shall be submitted to and approved by Council in writing prior to the issue of Development Approval.

Note: Pursuant to the above condition, Council will consider the installation of a three module rainwater tank connected to the roof water disposal as an appropriate means to satisfy this requirement, with overflow capacity connected to the Council’s stormwater system.

6. The acoustic panels depicted on Exhibit A11 shall be constructed from 6mm thick compressed fibre cement (or an equivalent material to the written satisfaction of Council). The panels shall be lined on the balcony side with 50mm thick acoustic insulation or otherwise to the written satisfaction of Council. This insulation shall be protected by a perforated material with an open area of at least 15%.

7. All lighting and security measures as depicted on the approved plans shall be maintained in good condition to the satisfaction of Council.

8. The louvered privacy screens to the northern and southern elevations below the balcony roofs shall be maintained in good condition to the satisfaction of Council.

9. The balcony treatment at the north east corner of the development, as depicted on Exhibit A11, shall be maintained in good condition to the satisfaction of Council.