Land Alliance Pty Ltd v City of Salisbury & Anor [2004] SAERDC 99 (26 November 2004)

Last Updated: 30 November 2004

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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LAND ALLIANCE PTY LTD v CITY OF SALISBURY & ANOR

Judgment of Commissioner Hodgson

26 November 2004

LOCAL GOVERNMENT - TOWN PLANNING

Development application to establish child care facility with associated carparking and landscaping refused – appeal – Residential Zone – whether appropriate in land use terms – relevance of Centres provisions of Development Plan – noise – scale – proposed use in conflict with intent and purpose of Residential Zone – appeal dismissed.

Development Act 1993, referred to.

Remove All Rubbish Pty Ltd v Corporation of the City of Salisbury and Anor (1989) 51 SASR 26; City of Mitcham v Freckmann and Anor [1999] EDLR 286, considered.

LAND ALLIANCE PTY LTD v CITY OF SALISBURY & ANOR
[2004] SAERDC 99


THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	This is an appeal against the decision of the City of Salisbury ("the Council") to refuse to grant Provisional Development Plan Consent to an application under the Development Act 1993 by the Appellant. Some relevant details are set out hereunder:

Date of application: 6 April 2004
Subject land: 178-180 Salisbury Highway,

Salisbury
Existing use: Residential – detached dwelling
Proposed development: Establish child care facility

accommodating 120 children with

associated carparking and

landscaping
Relevant authority: City of Salisbury
Relevant development plan: Salisbury (City) 16 October 2003
Relevant zone: Residential
Date of decision: 21 June 2004
Date of appeal: 8 July 2004

2	On 9 August 2004 Ms Kay Nash, who resides close to the subject land and who had made a representation to the Council opposing the subject proposal, was joined as a party to these proceedings.
3	The subject proposal is depicted in the proposal plan, tendered in evidence as Exhibit A3 and forming Attachment 1 to this judgment. That plan reflects amendments made to the proposal subsequent to its refusal by the Council, including a reduction in the total number of children to be accommodated from 120 to 100.

The Land and Locality

4	The subject land is an allotment of regular shape, with a frontage to Salisbury Highway of 36.58m, a depth of 102.71m, and a total area of approximately 3,757m2. On the land is situated a derelict, partly-demolished dwelling. The land is relatively level and contains no vegetation of significance.
5	The two qualified and experienced planners who gave evidence in this matter, Mr D Hutchison and Mr D Batge, defined localities, for the purpose of their evidence, which took in development on both sides of Salisbury Highway in the vicinity of the subject land and a number of allotments fronting Kimber Court and Gilbert Court, lying respectively south-east and north-east of the subject land. Mr Batge’s locality was somewhat more extensive than Mr Hutchison’s, extending south-west to Spains Road and north-east to Evan Avenue. Although little turns on the difference between the two, I have adopted Mr Batge’s locality for the purpose of my assessment.
6	That locality is predominantly residential in nature, with a considerable variation in allotment sizes, frontages and configurations. Allotment sizes range from 700m2, at the Spains Road end of the locality, to the subject land, which, at 3,757m2, is the largest allotment in the locality.
7	A small local centre is situated almost directly opposite the subject land abutting the western side of the Salisbury Highway. That centre is located within a Local Centre Zone. About 70m north of the centre, within the Residential Zone, at 169 Salisbury Highway, is a child care centre licensed for 60 children. Also within the Residential Zone, a short distance south of the Local Centre, is a single-storey detached dwelling and associated sand and gravel yard.
8	To the immediate north of the subject land is a narrow but deep allotment containing a single detached dwelling and having an area of approximately 2,100m2. To the immediate south is a single dwelling on a small allotment fronting Salisbury Highway, and to the rear of that allotment, with access from Salisbury Highway, a large allotment containing 10 two-storey dwellings, 8 of which are sited close to the southern boundary of the subject land. East and south-east of the subject land, in Kimber Court, is a relatively new Housing Trust development comprising semi-detached dwellings on allotments of about 330m2 each. To the north-east are semi-detached dwellings, situated within Pat Street and Gilbert Court, on allotments around 430m2 in area. A dwelling at 18 Kimber Court is sited in close proximity to the rear, eastern boundary of the subject land.
9	Development along the eastern side of the Salisbury Highway appears to be entirely residential, dwellings being predominantly single-storey.
10	The amenity of the locality is affected by high traffic volumes on Salisbury Highway, an arterial road carrying some 38,000 vehicles per day, and by some low-standard buildings opposite the subject land.

The Proposal

11

The proposal entails the demolition of the existing derelict dwelling on the subject land and the construction of a large single-storey building, some 665m2 in area, in accordance with the plans forming Attachment 1 to this judgment. Total site coverage of the building would be 17.6%, with indoor play space of 437m2 and outdoor play space of 1,870m2. The building would be set back some 38.0m from the front boundary of the subject land and 28.0m from the rear boundary. Side boundary setbacks would be 7.5m to the walls. A carparking area to accommodate 28 vehicles would be located between the building and the front boundary, and an indicative landscaping plan shows landscaping along all boundaries. Boundary fencing would be 2.5m high 9mm compressed fibre cement panels, with the exception of the front boundary, which would be fenced with what appears from Exhibit A3 to be a combination of masonry and timber or metal panels.

12

It is proposed that the centre be licensed for a maximum of 100 children although Mr Batge estimated its capacity to be 134 children. Staff members are likely to be 14 in total, and the opening hours proposed are 6.00am – 6.00pm Monday to Friday. Security lighting would be installed under the eaves of the building.

Assessment

13

The subject land is located within the Residential Zone, which is depicted on Maps Sal/34 and Sal/35 in the Development Plan for the City of Salisbury dated 16 October 2003. Map Sal/61 indicates that the subject land also lies within Policy Area 19. The relevant objectives for the Residential Zone are as follows:

RESIDENTIAL ZONE

Objective 1: A zone primarily accommodating a range of low to medium density dwellings to meet the diverse needs and preferences of the community.

Objective 3: Development of vacant or under-utilised land in an efficient and coordinated manner so as to increase the density and diversity of housing, and enable the orderly and efficient development of any adjacent land.

Objective 4: A desired character of primary low-rise (1 or 2-storey) dwellings, pleasant streetscapes, landscaping, and local open space, with residential development of up to 3 or 4 storeys in close proximity to district centres.

14	The discussion following the above objectives reads:

The Residential Zone is suitable for a range of low and medium density housing. An overall increase in the residential density is desirable in keeping with the council-wide objectives for residential development.

The following forms of residential development are appropriate in the Residential Zone:

(a) cost-effective and energy-efficient forms of housing;

(b) efficient layouts, allotment sizes and shapes, and road widths;

(c) development which makes efficient use of sites, eg 2-storey dwellings;

(d) selective infill development at densities higher than, but compatible with, adjoining development;

(e) nodes of medium density housing; and

(f) more compact development on the urban fringe.

Medium density forms of housing including detached dwellings designed for small allotments (eg courtyard dwellings), semi-detached dwellings, row dwellings, residential flat buildings, and group dwellings are encouraged in areas with good access to essential services, with concentrated nodes of medium density development close to centres and shops, public transport and areas of public open space.

15	Relevant Zone Principles are:

Principle 1: Development undertaken in the Residential Zone should be primarily low to medium-density dwellings, group dwellings, and residential flat buildings, with aged or disabled persons accommodation and special needs housing in suitable locations.

Principle 2: Vacant or under-utilised land in the zone should be developed in an efficient and coordinated manner so as to increase the diversity and density of housing, and enable the orderly and efficient development of any adjacent land.

Principle 3: Residential development should include, where appropriate:

(a) infill development at densities higher than, but compatible with, adjoining residential development.
(b) re-development of ....under-utilised residential land within ....Area 19 on Maps Sal/58 to 62.

16	The evidence in this matter concerned two principal issues:

(a) whether the proposed use was consistent with the locational and land use policies set out in the Development Plan; and

(b) whether the proposal would result in unacceptable levels of noise being experienced by nearby residents.

17	The noise issue becomes a consideration only if the proposal clears the land use hurdle. It is established law that the first question to be addressed in assessing a proposed development is whether that development is "at least prima facie, a suitable and appropriate use of the subject land having regard to the provisions of the development plan": Remove All Rubbish Pty Ltd v Corporation of the City of Salisbury and Anor (1989) 51 SASR 26 at 34. In answering that question, it is also necessary "to distil from the relevant provisions of the Plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control": City of Mitcham v Freckmann and Ors [1999] EDLR 286, at 294.
18	The objectives for the Residential Zone evidence a clear intention, on the part of the Council, to promote low to medium-density residential development in the zone, including the development of vacant or under-utilised land to increase the density and diversity of housing. This is reinforced by Council Wide Objective 3 under the heading "Residential Development", which seeks "a compact urban area", and the commentary under that objective, which refers to the desirability of using vacant and under-utilised land for infill housing development. Further reinforcement is provided by Zone Principles 1 and 2, the latter referring specifically to the use of vacant or under-utilised land in the zone to increase the diversity and density of housing, and Zone Principle 3(b), which seeks "re-development of existing housing and under-utilised residential land" within, inter alia, Policy Area 19, within which policy area the subject land is situated.
19	With reference to the above provisions Mr Leydon, for the Council, tendered, in evidence, a consent granted by the Council on 3 November 2003 for the development of 9 group dwellings on the subject land (Exhibit A7), and submitted that there was no direct support in the zone provisions generally for locating the proposed use within the Residential Zone, and even less within Policy Area 19, which specifically contemplated residential infill development on vacant sites within that area.
20	Mr Leydon further submitted that the above interpretation of the zone provisions was reinforced by the fact that Policy Area 29, also within the Residential Zone, made specific provision, under Objective 6 for that Policy Area, for the development of "community uses" within that area.
21	Additional reinforcement for the proposition that the proposed use was inappropriate in the Residential Zone, Mr Leydon submitted, was found in the commentary which follows Objective 2 in the Council Wide Residential Development provisions, which includes the following: "Residential Zones should provide primarily for residential uses. New non-residential activities should generally not be located in residential zones..."
22	The Development Plan for the City of Salisbury, said Mr Leydon, directed a range of land uses, including community facilities, into integrated centres. A hierarchy of such centres had been established within the Council area, consistent with the provisions of the Development Plan, including three District Centres, one of which was within a kilometre of the subject land, at Winzor Street, Salisbury Downs. The Council Wide Centre provisions of the plan include the following:

COUNCIL WIDE

Principle 1: Future shopping, administrative, cultural, office, community, entertainment, educational, religious, and recreational, facilities should be located in integrated, multi-purpose centres. (A facility falling into any of the above categories may hereafter, be referred to as a "centre facility" or, collectively, as "centre facilities". Principles of development control relevant to district, neighbourhood and local centre zones may refer to these zones collectively as "centre zones".)

Principle 2: Existing centre facilities which:

(a) for any reason, are not located in an integrated, multi-purpose centre should not prejudice the Council-wide objective that these facilities be located in integrated centres; or
(b) are not located within a centre zone, should not create a precedent or rational for allowing proposed or future centre facilities to be located other than within a centre zone.

Principle 8: Centres facilities which are not located within a centre zone should:

(a) be of a size and type which will not hinder the development or function of any centre zone, in accordance with the objectives for centres and the objectives for the appropriate zones; and
(b) conform to the access, car parking, and design, principles for centre zones as set out in Principle of Development Control 13.

23	Mr Leydon tendered a summary of the 19 existing child care centres within the City of Salisbury (Exhibit R2). That summary indicates that, while a number of existing centres are located within the Residential Zone, all centres licensed for more than 63 children were located in centre or non-residential zones. Child care centres licensed respectively for 92 and 130 children were located in the John Street and Ingle Farm District Centres. No child care centre was located in the Winzor Street, Salisbury Downs District Centre, but evidence was given to the Court by Mr M Boscaini, manager of that centre, to the effect that a site with an area of just under 6,000m2 was available within part of the centre designated for community facilities, which site could be developed for a child care centre.
24	Mr Manos, for the Appellant, submitted that child care centres were a use typically established in residential areas, observing that 10 of the 19 existing child care centres within the Council area were within the Residential Zone. None of the evidence put to the Court suggested that there was conflict between child care facilities and residential neighbours. Child care centres were not designated as a non-complying form of development within the Residential Zone, said Mr Manos, so it had to be assumed that such centres could be contemplated in that zone. While it was acknowledged that, on the basis of the evidence of Mr Turnbull and Mr Maddern, both qualified and experienced acoustic engineers, there would be some noise generated by the proposal which would exceed the relevant Australian Standard for sleeping areas, the hours of operation of the child care centre would mean that such noise would only affect any neighbour on the southern side of the proposed development who was attempting to sleep during the day. It was not necessary, Mr Manos submitted, to demonstrate no adverse effect whatsoever would arise from the proposal before it could be granted consent.
25	The Development Plan, said Mr Manos, clearly contemplated non-residential uses being established in the Residential Zone, not only because uses such as child care centres were not designated as non-complying in that zone, but also because Council Wide Centres Principle 8 also made reference to such uses:

Principle 8: Centres facilities which are not located within a centre zone should:

(a) be of a size and type which will not hinder the development or function of any centre zone, in accordance with the objectives for centres and the objectives for the appropriate zones; and
(b) conform to the access, car parking, and design, principles for centre zones as set out in Principle of Development Control 13.

26

Mr Manos acknowledged that, based on the evidence of Mr Turnbull and Mr Maddern, there would be times when noise from the child care centre would be noticeable, but in an acoustic environment which was already quite noisy, he submitted, any additional noise was unlikely to have an adverse effect on amenity, particularly having regard to predicted increases in traffic volume on Salisbury Highway which were likely to result in existing background noise levels increasing.

27

The case for the Appellant was founded on three related premises:

(a) that, because a child care centre was not designated as non-complying within the Residential Zone, it was a use contemplated by the Development Plan in that zone;

(b) that the proposed use was generically appropriate because a number of child care centres were already located in the Residential Zone; and

(c) that this specific proposal was appropriate because there was no evidence that it would have any significant adverse effects on the locality.

28	The decision of the Full Court in Freckmann is authority for the proposition that no significance can be attached to the fact that a particular use is not listed as "non-complying" in a zone: "....it is a non-sequitur to conclude that the absence of a form of development from the list of non-complying developments for a zone means that there are parts of the zone where such a use may be permitted ....[the] approach to be adopted by planning authorities when considering whether to grant or refuse planning consent is to consider all relevant issues without making a presumption for or against the proposed use" (at 291-2). As the Full Court also decided in Freckmann, consideration of all relevant issues includes determining the "overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development" (at 294).
29	An examination of the provisions for the Residential Zone evidences a strong focus on residential development and redevelopment, including use of vacant and under-utilised land for that purpose, the latter being given particular emphasis in several designated parts of the zone, including Policy Area 19. The fact that child care centres are not designated as "non-complying" in the Residential Zone is given some point by a specific reference, in Objective 6 for Policy Area 29, to a Precinct set aside specifically for "community uses", but there is nothing in the zone provisions, as they apply to Policy Area 19, which could be interpreted as support for the establishment of a child care centre in that Policy Area.
30	It is true, as Mr Manos pointed out, that a number of child care centres already exist in the Residential Zone. On the evidence, however, some of those centres pre-date the establishment of the Residential Zone in the form in which it presently appears in the Development Plan, and all are substantially smaller than the subject proposal. I also note that Principle 2 under the Council Wide Principles relating to Centres and Shops stipulates, inter alia, that "Existing centre facilities which ....(b) are not located within a centre zone, should not create a precedent or rational [sic] for allowing proposed or future centre facilities to be located other than within a centre zone".
31	The subject proposal is between 58% and 122% larger than any of the existing child care centres within the Residential Zone, and even were it to be accepted that smaller centres are appropriately located within the Residential Zone, the scale of the proposal is such that, based on other child care centres of a comparable scale, it is more appropriately located in a District Centre.
32	The proposition that the proposal should be acceptable if it can be demonstrated that it would have no adverse effects on the locality is one which is not supported by the relevant case law. The decision of the Full Court in Freckmann addressed this question squarely, and held that "It is ....wrong to frame the question whether to grant or refuse development consent as one which requires a determination whether the proposal conflicts to a material degree with relevant provisions of the Development Plan. The question whether the proposal conflicts with provisions of the Development Plan is part of the process of determining whether development consent should be granted or refused. But, if it is not possible to identify an express provision with which the proposal conflicts, it does not necessarily follow that the proposed development should be permitted to proceed. There might be factors which are implicit in the plan which require a planning judgment to be made to refuse consent .... the proper approach is to consider the application on its merit, weigh the benefits and detriments by reference to the Development Plan, and then make a judgment whether to grant or refuse development consent".
33	Having carefully considered all the evidence, two specific aspects of the proposal appear to me to conflict with relevant provisions of the Development Plan. The first of these is the potential, acknowledged by both noise experts, for some noise nuisance to be caused to occupiers of the upper levels of the two-storey development to the south of the subject land, when groups of children are playing in the centre’s outdoor areas. The second is the scale of the proposal, which, with a total floor area of 674m2 and dimensions of approximately 20m x 36m, will be incompatible with the scale and dimensions of the predominant form of development in the locality, namely single-storey detached dwellings. These aspects of the proposal bring it into conflict with Council Wide Residential Development Principle 27, which is in the following terms:

Principle 27: Non-residential development in residential zones should:

(a) provide adequate protection for residents from air and noise pollution, traffic disturbance and other harmful effects on health or amenity;
(b) be compatible in form and scale with existing or intended residential development in the locality; and
(c) not detract from the residential character or amenity of the zone or locality.

34

Neither of these aspects, in isolation, might be sufficient to warrant refusal of the subject proposal. However, when they are taken together with the proposal’s incompatibility, in land use terms, with the policy directions set by the Development Plan for the Residential Zone generally, and Policy Area 19 specifically, and those for centres within the Council area, I am led to conclude that the decision of the Council to refuse the subject proposal was correct, and should be upheld.

35

There will be an order to that effect.