Raptis v City of Adelaide [2005] SAERDC 118 (29 November 2005)

Last Updated: 1 December 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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RAPTIS v CITY OF ADELAIDE

Judgment of Her Honour Judge Cole, Commissioner Mosel and Commissioner Hamnett

29 November 2005

LOCAL GOVERNMENT - TOWN PLANNING

Application seeking approval for the demolition of an existing dwelling and the construction of a new dwelling refused by Council - decision appealed - issues of heritage value, building height, character, overshadowing and overlooking - provisional development plan consent granted subject to conditions.
Development Act 1993, referred to.

RAPTIS v CITY OF ADELAIDE
[2005] SAERDC 118


THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

A development application, DA/354/2004, was lodged with the City of Adelaide ("the Council") on behalf of Ms Raptis ("the applicant") on 21 May 2004. The application sought approval for the demolition of an existing dwelling and the construction of a new dwelling at 109 MacKinnon Parade, North Adelaide ("the site"). The Council processed the application as being for a category 2 development. The Council refused to grant provisional development plan consent to the application on 7 February 2005.

The Site

2	The site has a total site area of approximately 559 square metres. It has a frontage to MacKinnon Parade of 15.44 metres, and its depth on the south-west boundary is 37.57 metres. The rear boundary of the site abuts the property to the rear (which fronts Finniss Street) for 9.14 metres from the north-west corner of the site, and then indents across the north-eastern corner of the site forming the edge of a right of way which services the site and properties to the north-east.
3	There is a dwelling on the site, which is set back three to six metres from the frontage. It has side set backs of approximately 600mm. The dwelling is a single storey villa with a rendered façade and an iron roof. It occupies most of the site. Most of the dwelling dates from 1898. The dwelling is called "Riversdale". We will refer to it as "the existing villa".
4	The existing villa was formerly used by the University of Adelaide as part of the student accommodation offered through Kathleen Lumley College Incorporated.
5	Neither the existing villa nor the site is or has at any relevant time been listed as either a State Heritage Place or a Local Heritage Place.
6	Evidence was given in the appellant’s case by Mr Matthews, the project architect, Mr Vincent and Mr Holmes, both of whom are town planners, and Mr Bateup, who is an architect. The expert witnesses in the Council’s case were Ms Bell who is an architect and planner, Mr Butcher, a heritage architect, and Mr Nattrass, a planner.

Locality

7

Each of the planners identified a different locality for the purpose of assessing the proposed development. We have considered the various localities identified and the reasons given for adopting them.

8

The principal issues in this matter are heritage, height and character. The site is viewed from MacKinnon Parade west in conjunction with properties either side of it, from the former University of Adelaide gym to the west, to the 10 storey building on the corner of MacKinnon Parade east to the east. We adopt that area, together with the site, the right of way to the north of the site, and a small portion of the parklands opposite the site, as the primary locality. We also bear in mind, however, that the proposed development will affect the appearance of MacKinnon Parade from a larger area of the parklands than the area included in any of the localities identified by the planners, and also from War Memorial Drive.

The Proposal

9

The applicant proposes to demolish the existing villa and build a new dwelling on the site. The new dwelling is to have two storeys of living area (447 square metres), a basement carpark to accommodate two cars and a roof top terrace. The outdoor open space is to include a lap pool, a courtyard, an entry terrace and a service yard. Vehicular access to the basement carpark is to be gained from the site at the rear of the site. Pedestrian access to the site is provided for at the front and the rear. The new dwelling is to have a lift, the overrun of which will protrude above the roofline to approximately 12.5 metres above footpath level. The front fence is to be 1.8 metres high. There is to be a wall on the eastern boundary which will be 4.5 metres high. The new dwelling is to be setback 5.9 metres from the front boundary and 1.1 metres from each side boundary. The front of the dwelling will be mostly sandstone, and the other external walls will be rendered.

Development Plan

10

The applicable Development Plan is the development plan for the City of Adelaide consolidated on 6 November 2003. The site is within the R12 Finniss Precinct. We have had regard to the relevant provisions of the Development Plan referred to by each of the expert witnesses. We will not set all of them out.

Heritage

11	Mr Butcher provided, with his statement, an extract from the North Adelaide Heritage Survey 2004, undertaken by McDougall & Vines, heritage architects. The information in the survey concerning the existing villa was not contested. The villa was designed by the architect E J Woods and built in 1898 for Frank Richmond Ayers, the eldest son of Sir Henry Ayers. Mr Ayers lived in the existing villa until he died in 1906. Some time subsequently, the existing villa was divided into four tenancies. It was purchased by the University of Adelaide in 1957, and has presumably been used for student accommodation ever since.
12	The villa is not a State or Local Heritage Place. It was recommended for listing as a Local Heritage Place as part of the Council’s draft Heritage and Character North Adelaide Plan Amendment Report, however, on 9 June 2005, the Council resolved not to retain it as an item on the list of Local Heritage Places. It will thus be removed from the draft list. The Plan Amendment Report has not yet been authorised in any event, so the proposed listing is of interest as factual context only – it never had any legal effect.
13	The Development Plan provides, in the Council Wide section, in Objectives 34 and 35:-

Objective 34: Conserve and enhance those places and areas which contribute to the heritage of the City in recognition of the distinctive contribution they make to the character of the City.
Objective 35: Ensure that development in the proximity of places and areas which contribute to the heritage of the City does not diminish their heritage value and built form contribution to the character of the City.

14

These objectives are not, in their terms, confined to State and Local Heritage Places. They apply to this development application. In applying them, however, we bear in mind that the protection which designation as a local heritage place would afford has not been extended to the existing villa. When weighing Objectives 34 and 35 up with all of the other provisions of the Development Plan which are applicable to the proposed development, we must be careful not to accord a de facto heritage listing to the existing villa, when that clearly was not the intention of the policy-makers whose policies, as expressed in the Development Plan, it is our task to apply.

15

The existing villa is one of a group of four remaining late Victorian houses which are contiguous with each other. Mr Butcher said, in his statement:-

Of these four No. 109 (i.e. "Riversdale") is the dominant building in the group, being a large substantial residence which originally extended back to Finniss Street with various out-buildings and stables (now gone to make way for another new multi-level townhouse), while the other three are more typical Victorian villas. This is the only concentration of Victorian buildings remaining in this part of MacKinnon Parade. This group is the key historic focus in this part of MacKinnon Parade and its remaining original character, and No. 109 is the visual focus within it, even without its original verandah.

16	There was evidence that, until quite recently, there were three additional members of the row of late Victorian detached dwellings to the east of the remaining four dwellings.
17	Opinions differed widely among the expert witnesses as to the extent to which the existing villa, in the planning assessment of this development application, could be considered to contribute to the heritage of the city and the character of the city. State and Local Heritage Places are accorded specific protection from demolition in the Development Plan.

20 HERITAGE PLACES

Development of a Heritage Place which is:
(a) listed on the Register of State Heritage Places and provisional entries on that register;
or
(b) identified as a Local Heritage Place (City Significance) in the provisions for the relevant Precinct
should not diminish its heritage value or structural integrity and should conserve the substantial whole of the place.
Development on a conservation site should be compatible with the heritage value of the Heritage Place and neither dominate nor compete with its built form character in matters including design, siting, scale, form and detail.
23 LOCAL HERITAGE PLACE (TOWNSCAPE) - RESIDENTIAL AND MAINSTREET DISTRICTS
Within the Residential and Mainstreet Districts, development should conserve, retain and enhance the frontage and side wall returns, which are visible from the street, of a Local Heritage Place (Townscape), identified in the provisions for the relevant Precinct.
Development behind a Local Heritage Place (Townscape) should neither dominate nor compete with the built form character of a Local Heritage Place (Townscape) in matters including design, siting, scale, form and detail.
Any alteration or addition to a Local Heritage Place (Townscape) should neither dominate nor compete with the built form character of the Local Heritage Place (Townscape) in matters including design, siting, scale, form and detail.

18

In addition, there are other mechanisms available to the drafters of the Development Plan. Heritage areas and heritage streetscapes, for example, may be identified in the Development Plan and protected. None of these measures has been taken with respect to the existing villa, either alone, or with its neighbours. The Development Plan accords it no specific value on account of its heritage value. Objective 34 must be applied accordingly, and cannot prevent its demolition. The work that Objectives 34 and 35 have to do in relation to the development proposed is in the assessment of the effect of the new dwelling upon the character of the City.

Proposed Dwelling

19

Many components of the proposed development were not in dispute between the parties. The land is to remain in use for residential purposes at low density, which is appropriate in the Finniss Precinct. The proposal is in substantial compliance with many of the qualitative standards set by the Development Plan such as dwelling unit factor and plot ratio. There was no real objection to the vehicular access and carparking arrangements proposed from a traffic engineering point of view nor were there any concerns of substance about the adequacy of outdoor open space to be provided. Principle 4 of the Finniss Precinct provides:-

Buildings should incorporate traditional roof shapes and distinctive elements of façade composition and detailing and use appropriate materials, colour and finishes.

20	The proposal incorporates a pitched roof and its use of sandstone and render puts it in substantial compliance with Principle 4.
21	The main areas of complaint in relation to the proposed dwelling related to heritage protection and character, with overshadowing, overlooking and the sustainable development provisions of the Development Plan also being raised.

Building Height

22	Principle 9 for the Precinct provides:-

The maximum building height in the Precinct is 6 metres or 2 building levels, with the exception of Brougham Place which has a maximum building height of 9 metres or 3 building levels.

23	Two distinct interpretations of Principle 9 emerged from the expert evidence. One school of thought, to put it at its most extreme, was that literal compliance with Principle 9 largely disposed of the issue of height in relation to the proposed development.
24	The definition of "building level" is:-

Building level: that portion of a building which is situated between the top of any floor and the top of the floor next above it and if there is no floor above it, that portion between the top of the floor and the ceiling above it. It does not include a floor located more than 1.5 metres below the median natural or finished ground level or the roof-top location of plant and mechanical equipment.

25	Because the basement carpark will be 1.6 metres below natural ground level, the proposed dwelling will have two building levels within the meaning of that term in the Development Plan.
26	The second school of thought interprets Principle 9 less literally. Effectively, it treats the concept of maximum building height as a check on the "2 building level" test.
27	The definition of "maximum building height" is:-

Maximum building height: the maximum vertical distance between the median natural or finished ground level at any point or any part of a building and the ceiling height of the top-most building level.

28	Using this approach, we note that the proposed dwelling will have two building levels within the meaning of the Development Plan, but we also note that the measurement taken in accordance with the "maximum building height" definition i.e., the vertical distance between the finished ground level to the ceiling height of the second level at the MacKinnon Parade frontage, will be 8 metres. This approach then notes that the proposed dwelling will be one third as high again as the maximum building height sought in Principle 9.
29	We consider that the second approach is preferable to the first, and we adopt it. In crafting a provision to indicate what building heights are to be considered acceptable in the Precinct we do not think that the drafters of the Development Plan intended to indicate that a building with two building levels of any height at all would be acceptable. It seems to us that it was intended that there be some flexibility, but that the 6 metre measurement was to represent, approximately, the desirable maximum building height.
30	The proposed development incorporates a number of features, each of which will contribute to its height in a manner which is not captured by the definition of maximum building height. Firstly, there is the basement carpark, the effect of which is to elevate the ground floor 1.4 or 1.5 metres above finished ground level at the MacKinnon Parade frontage. Secondly, there is the rooftop living area, which has no ceiling. Whilst the pitch of the roof would take up height to a similar extent, the presence of the rooftop space accounts for the lift overrun, which is the highest point of the dwelling at some 12.5 metres above natural ground level. The parapet wall behind the roof top space will be approximately 10 metres above natural ground level.
31	In short, whilst the proposed development is in literal compliance with Principle 9, there are issues regarding the height of the proposed development which need to be further considered in the context of character.

Character

32	The sole objective for the Precinct is:

OBJECTIVE
1 Development which supports the attainment of the Desired Future Character for the Finniss Precinct.
DESIRED FUTURE CHARACTER
The Finniss Precinct creates a distinctive built form edge between the Park Lands and Lower North Adelaide. The predominantly low to medium scale residential character of the Precinct will be maintained by new residential development which complements the existing mixture of two and three-storey dwellings and single-storey houses.

33	The proposed development is low scale residential development. In evidence, however, there was a divergence of opinion as to what is meant by development which complements the existing mixture of two and three storey dwellings and single storey houses. Again, to put the differing opinions at their most extreme - one view saw the Desired Future Character Statement as acknowledging that a mix exists, and seeking development complementary to that mix. The other held that it was the intention of the Desired Future Character Statement that precisely the existing mix of 1, 2 and 3 storey dwellings should be maintained.
34	Mr Butcher was particularly concerned about the potential for the single storey element of the locality, and of MacKinnon Parade east, to disappear if the first view prevails. Mr Butcher pointed out that there are only four remaining single storey houses in the locality (of which the existing villa is one), and only 7 single storey houses on MacKinnon Parade east.
35	This aspect of the Desired Future Character Statement is particularly difficult to apply. We note that it is Precinct-wide rather than being confined to the particular locality of the land, or even MacKinnon Parade east. The Desired Future Character statement does not identify anything particularly valuable about the exact mix of 1, 2 and 3 storey dwellings at any particular point in time. Having regard to the wording of the provision, it is our view that it dictates an assessment of the impact of a proposal upon the character of its locality which is described in the Desired Future Character statement. It does not dictate an outcome whereby a single storey dwelling can only be replaced by a single storey dwelling.
36	Under the heading "Townscape Context" in the Precinct provisions, the Development Plan refers to Council Wide Principle 10 and further provides:-

2 Development should conserve and protect the townscape character of the Precinct, which is established by the single-storey detached nineteenth and early twentieth century dwellings. The townscapes comprise substantial Victorian and Edwardian villas and the occasional terrace house and cottage. Closely sited, small cottages are more typical along minor streets and lane ways.
3 The design of development should complement the existing character with regard to scale, siting, subdivision pattern, massing, form, architectural detailing, materials and colour.
4 Buildings should incorporate traditional roof shapes and distinctive elements of façade composition and detailing and use appropriate materials, colour and finishes.
5 Within the Precinct, there are opportunities for innovative and contemporary design, but these should be compatible with the scale and character of existing buildings in the locality with regard to massing, composition, architectural design, materials and colour.

37	It was Ms Bell’s opinion that the land does not present the opportunity spoken of in Principle 5. She considered that Principle 5 related only to sites such as the former University gym site, which is clearly ready for redevelopment. We disagree. Principle 5 applies to any site in the Precinct where the existing improvements are not protected from demolition.
38	There was substantial agreement that the proposed development would comply with Principle 4.
39	As to Principle 3, there was little complaint about the front or side set back of the proposed dwelling. The front façade is to be set back 5.9 metres from the front boundary at ground floor level, 5.0 – 5.9 metres at first floor level and 2.6 metres at balcony level. The side set backs will be approximately 1.1 metres. There was no complaint of substance with respect to the architectural detailing, materials and colour. Indeed, Mr Bateup gave evidence that he considered that the proposed dwelling displayed substantial architectural merit. The area of disagreement among the experts related to the scale of the proposed dwelling; particularly its height. We will return to this issue.
40	The applicability of Principle 2 was the subject of considerable evidence. The difficulty arises from the perception in the minds of some of the experts that the description of the Precinct in Principle 2 does not apply to the locality of the land. The second and third sentences of the principle clearly have no application because the area there described is self-evidently not the locality of the proposed development. As to the first sentence, there are four single storey late 19th Century detached dwellings in the locality, but there is a great deal more besides. The question of whether the four single storey dwellings can form a townscape, or even a streetscape, was discussed in evidence, and opinions differed. This issue is also relevant under Principle 6(b), which states:

6 In addition, development fronting the streets described below should maintain the existing scale and enhance their distinctive townscape character:
...

(b) MacKinnon Parade

Large Victorian residences and a pair of smaller double-fronted cottages on individual allotments sited close to the street frontage comprise the townscape. MacKinnon Parade presents a diverse built form which includes large Victorian residences and two-storey townhouses. Infill development should complement the one to two storey scale, set-back and cohesive built form character of these buildings.

41	The attribution of meaning to Principle 6(b) presented difficulties to all of the witnesses. It is obscure. The area it describes is simply not MacKinnon Parade east as it is in 2005. Mr Vincent prepared Exhibit A8 which traced this provision through its evolution in the Development Plan from December 1987 through amendments in July 1993, December 1996, July 2000 and December 2001. This exercise showed that Principle 6(b) is a remnant of a longer statement. It is of limited usefulness in its present form.
42	The application of the provisions of the Precinct and the Council Wide provisions involve an assessment of the effect the proposed development will have upon the existing character of the locality. Objectives 34 and 35 have a part to play in this part of the assessment. We reject Mr Holmes’ suggestion that the relevant assessment might be in relation to what is likely to happen to sites in the locality in the future. We do not consider that that is a matter we should factor in to our assessment. If this proposal is in sufficient compliance with the relevant provisions of the Development Plan, then the impact upon the character of the locality that the undertaking of the proposed development will bring about will become a reality in the assessment of future proposals. The Development Plan clearly directs us to what is existing.
43	Principle 10 for the Precinct provides:-

10 Existing single-storey townscapes should be maintained. However, sympathetic second-storey additions which extend to the rear [of] the roof space of existing buildings may be appropriate.

44	Ms Bell and Mr Butcher expressed a clear preference for the existing villa to be restored and developed along the lines provided for in Principle 10. However, we do not consider that the existing villa is part of an existing single-storey townscape. A townscape is a much larger area than 4 residential properties in a row.
45	We do not consider that the row of four detached single storey dwellings together comprise a streetscape, much less a townscape. The land is viewed from MacKinnon Parade, the parklands and beyond in the context of its locality. From east to west, that portion of the locality includes buildings of these heights: 10 storeys (31 metres), 3 storeys (13 metres), 2 storeys (10.0 metres), 2 storeys (10.6 metres), 1 storey (5.4 metres), 1 storey (5.2 metres), the site (6.8 metres), 1 storey (6 metres), 2 storeys (7.6 metres), 2 storeys (10 metres), 3-4 storeys (11 metres), 1 storey (5.3 metres) and 3 storeys (10 metres). It is a very mixed streetscape which is visually dominated by the higher buildings within it, which are also the more modern buildings. However, we agree that the row of 4 single storey Victorian dwellings has some heritage value and forms an element of the locality. That heritage value will be diminished by the replacement of one of the four dwellings with the new dwelling. However, in the context of the streetscape and the locality, having regard to Objectives 34 and 35 and bearing in mind the design of the new dwelling, we do not consider that the diminution in heritage value, in the context of all of the relevant provisions of the Development Plan, is such as to warrant the refusal of the proposal.
46	The height of the façade, the lift well and the parapet wall of the proposed dwelling cause us some concern. The lift well, however, is set back some 14 metres from the MacKinnon Parade frontage, and the parapet wall somewhat further. The matter is very finely balanced, but, having regard to the design of the dwelling, in the context of the locality, we consider that the height and scale are acceptable.

Overshadowing

47	A set of diagrams illustrating the shadows which would be cast by the proposed dwelling at various times was tendered in evidence. The concern in relation to overshadowing relates to the property to the west of the land, which will experience considerably more shadow if the proposed development proceeds, particularly in the winter.
48	Principles 26 and 27 provide:

26 MICRO-CLIMATE AND DAYLIGHT

Development should be designed and sited to minimise detrimental micro-climatic and solar access impact on adjacent land or buildings, including effects of patterns of wind, temperature, daylight, sunlight, glare and shadow.
Building design should not result in wind patterns which may cause discomfort and danger at street level. An expert assessment may be required of applicants to demonstrate that a proposed design effectively avoids such conditions.
The use of glazing on building facades should not result in glare which produces discomfort or danger to pedestrians, occupants of adjacent buildings and users of vehicles.
Residential development should be designed and sited to ensure the provision of sufficient daylight to habitable rooms and to private open space.

27 MINIMUM SUNLIGHT ACCESS

Development within, or adjoining, the Residential District should maintain at least two hours of direct sunlight between 9.00am and 3.00pm solar time on 22 June to either the northern façade or at least one ground floor habitable room window (excluding bathroom, toilet, laundry or storage room windows), of any neighbouring residential property, and to at least 20 percent of that property’s private landscaped open space. Where the existing period of direct sunlight is less than this (ie two hours per day, or 20 percent open space), development should not further reduce it.

49	On the evidence of Mr Matthews, we are satisfied that the proposed development is sufficiently in compliance with Principles 26 and 27.

Overlooking

50	Principle 44 provides that development should minimise its intrusion on the privacy of adjacent residential premises.
51	Ms Bell was concerned that the upper doors and windows on the eastern wall of the proposed development would allow overlooking. We are satisfied that the 4.5 metre high boundary wall, the top metre of which is to be obscure glass, sufficiently addresses this issue. We note that all of the windows on the west elevation are to be obscure glass.
52	We have no further concerns regarding the sustainable development provisions of the Development Plan.
53	Ms Bell placed some relevance on Principle 6 of the Council Wide provisions of the Development Plan which says:-

Development located either abutting, straddling or within 20 metres of a precinct boundary should provide for a transition and reasonable gradation from the character desired from one to the other.

54

The parklands opposite MacKinnon Parade east are in PL 5 Upper Torrens Sports Fields Precinct. There is nothing in the provisions for that Precinct which speaks against the proposed development. There was a suggestion from Ms Bell that Principle 6 of the Council Wide provisions might seek a grading down of building height to single storey at the interface with PL 5 Upper Torrens Sports Field Precinct. We cannot draw that inference out of the Development Plan provisions.

Conclusion

55	The existing villa does not enjoy protection from demolition because it is not listed as either a State or Local Heritage Place. It is not in any kind of heritage area. The Development Plan does not acknowledge it, or its neighbours, as having any heritage value at all. Whilst Objective 35 has application to the villa, in our opinion, it cannot, in all the circumstances, prevent its demolition if the requirements of Principle 5 are met. To hold otherwise would circumvent the operation of the development control system as it applies to heritage places and would undermine the role of the policy makers in that system.
56	On our assessment of the planning merits of the proposed dwelling against all of the relevant provisions of the Development Plan, in the light of all of the evidence from all of the expert architects and town planners, we consider that the proposed development is sufficiently in compliance with the Development Plan to warrant approval.
57	The decision of the Council to refuse the proposed development will be reversed.
58	Provisional development plan consent is granted subject to the following conditions:

1. The development shall be undertaken in accordance with the plans comprising Exhibit A1 in this appeal, being:

•	Drawing No. SK16B, dated April 2004, prepared by Matthews Architects;
•	Drawing No. SK17, dated April 2004, prepared by Matthews Architects;
•	Drawing No. SK23A, dated July 2004, prepared by Matthews Architects;
•	Drawing No. SK25B, dated April 2004, prepared by Matthews Architects;
•	Drawing No. SK29A, dated October 2004, prepared by Matthews Architects;
•	Drawing No. SK30, dated August 2004, prepared by Matthews Architects;
•	Drawing No. SK31, dated May 2005, prepared by Matthews Architects.

2. The materials and finishes of the external walls of the development shall be in accordance with Exhibit A7 in these proceedings, namely:

•	the external walling of the proposed dwelling shall be rendered with Dulux "AcraTex Render Wall and Texture Coat" or a like product and sandstone adhered to a masonry brick or block substrate; and
•	the render of the external walls shall be painted with an acrylic paint in a colour of a light "earthy" and "stone" toning (more commonly known as "beige", "light tan", "light crème browns" and "sandstone" for example) to complement the smooth Sandstone colour walling elements of the proposed development.

3. The privacy screen noted as "frosted glass in steel framework" on Drawing No. SK31, dated May 2005, and "frosted glass screen mounted to boundary wall" on Drawing No. SK30, dated August 2004, is to be installed prior to the occupation of the development.

4. The finished floor levels and ceiling levels of the development shall be in accordance with Exhibit A1.

5. The stormwater detention system for the development shall be submitted to and approved by the Council prior to or at the time of provisional Building Rules consent being granted.

6. Water collected from the roof drainage system shall be directed to an on-site water storage tank with a capacity of not less than 5000 litres and reticulated into the dwelling.

7. A landscaping plan as detailed on the Ground Floor Plan Drawing No. SK23A and comprising part of Exhibit A1, specifying all areas to be landscaped, species to be used, maturity at time of planting and mature height of plants shall be submitted to and approved by the Council prior to or at the time of provisional Building Rules consent. The establishment of all landscaping shall be undertaken within 3 months of the completion of the building/development works and thereafter shall be maintained in good health and condition to the satisfaction of the Council. Any dead or diseased plants or trees should be replaced to the reasonable satisfaction of the Council.