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Althoff v Adelaide City Council [2005] SAERDC 4 (18 January 2005)

Last Updated: 25 January 2005

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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

ALTHOFF v ADELAIDE CITY COUNCIL

Judgment of Commissioner Hodgson (ex tempore)

18 January 2005

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 – application to restore existing building and undertake alterations and additions, including a second storey, to form two dwellings, and construct a new two-storey dwelling at the rear – Childers East Precinct – refused by Council – appeal – compliance with DUF – adequacy of landscaped open space – overshadowing – overlooking – proposal in general conformity with relevant provisions of Development Plan – Provisional Development Plan Consent granted, subject to conditions.

ALTHOFF v ADELAIDE CITY COUNCIL
[2005] SAERDC 4

THE COURT DELIVERED THE FOLLOWING EXTEMPORE JUDGMENT:

1 I have given careful consideration to the evidence led in this matter and to the submissions of counsel. I note, with some surprise, that the Council has elected to lead no evidence, expert or otherwise. While that is not, in itself, conclusive, and accepting that this is an expert Court capable of reaching its own conclusions on planning issues, the force of Ms Savva’s submissions inevitably has been weakened by the absence of any expert planning evidence to support them.
2 I note also that the proposal was recommended for approval by Council’s own planning staff, with the support of the Council’s Heritage Adviser, Ms Vines, and that the evidence of Mr Harry as to the proposal’s compatibility with the character of surrounding development and the heritage and townscape qualities of the existing building on the subject land was uncontested.
3 Ms Savva founded her submission that the proposal represented an overdevelopment of the subject land on four grounds:

(a) that it did not meet the relevant Dwelling Unit Factor (DUF);

(b) that it did not provide the requisite amount of landscaped open space;

(d) that it created the potential for overlooking of adjoining properties.

4 Whether the proposal met the relevant DUF turned, in Ms Savva’s submission, on whether it was properly characterised, in the terms used in Precinct Principle 8, as "a residential flat building contained within an existing building", in which case the DUF was 250m², or "a residential flat building not contained in an existing building", in which case the DUF was 500m². Because the proposal entailed an upper level extension to the existing building, Ms Savva submitted it was properly characterised as the latter, such that, with a required DUF of 500m² for the rear dwelling, a total site of 1,500m² was required to satisfy Precinct Principle 8, whereas the total site area available was 1,072m².
5 I agree with the evidence of Mr Batge and the submission of Mr Botten that the proposal is consistent with the spirit, if not the letter, of that part of Principle 8 requiring a DUF of 250m² for a residential flat building contained within an existing building, particularly because the proposal does not extend beyond the footprint of the existing building. To conclude otherwise would require a very literal approach to the wording of the Development Plan, an approach spoken against by the relevant caselaw on the correct approach to interpretation of the Development Plan.
6 The second of Ms Savva’s grounds, that the proposal did not provide sufficient landscaped open space, was based on two propositions: first, that the proposal was required, by Precinct Principle 14, to provide at least 30% landscaped open space, and second, that the definition of "landscaped open space" required space so designated to "incorporate substantial landscape planting".
7 The evidence of Mr Batge was that the proposal provided 28.9% landscaped open space, and arguably, only needed to provide 20%, because, in the terms used by Precinct Principle 14, it was "within an area in which single storey frontages to a street prevail". Mr Batge estimated that approximately 75% of frontages within the Childers Street frontage of his locality (the only relevant frontage, in his opinion) were single-storey. From my observations on the view, I am satisfied that single-storey frontages certainly predominate, if not to the extent suggested by Mr Batge, and that the proposed landscaped open space provision comfortably meets Principle 14. To ensure that "substantial landscape planting" is actually incorporated within the landscaped open space areas of the proposal, it is merely necessary to require a landscaping plan, incorporating details and locations of landscaping, to be submitted to the Council prior to the issuing of Building Rules Consent.
8 Ms Savva’s third ground, that the proposal would cause additional overshadowing to the residential flat building to the east, was conceded in evidence by Mr Batge, who pointed out, however, that the additional overshadowing was minor, affecting only the western front portion of the adjoining building, which would continue to receive substantial morning light into its living areas, located on its eastern side.
9 On balance, I am satisfied that the additional overshadowing occasioned by the proposal is not of such consequence as to justify its rejection.
10 The fourth of Ms Savva’s grounds, that the proposal created the potential for overlooking of adjoining dwellings, has already been addressed in the proposal plans by the incorporation of obscure glazing to a height of 1.7m in upper level windows. Ms Savva acknowledged this but pointed out that Council Wide Principle 44 (Visual Privacy) envisaged use of obscure glazing in "non-habitable" rooms. Principle 44 refers to the application of a range of techniques to prevent overlooking, and provides a number of examples. It does not preclude the approach proposed, and I am satisfied that Principle 44 is met by the proposal.
11 Having regard to all the above, I have concluded that the subject proposal is in general conformity with the relevant provisions of the Development Plan and warrants Provisional Development Plan Consent.
12 Having heard the parties on conditions, the order of the Court is that the decision of the Council is set aside and Provisional Development Plan Consent granted to Development Application DA/44/2004, subject to the following conditions:

1. The development granted Provisional Development Plan Consent shall be undertaken in accordance with the proposal plans forming Exhibit A1 in these proceedings and the plan dated 8 July prepared by Butcher Brown Architects and forming page 4 of Exhibit R1, to the reasonable satisfaction of Council, except where varied by conditions below.

2. A final schedule (and samples) of materials and finishes (including the manufacturer’s details of the proposed fence spears) shall be submitted to and approved by Council prior to Provisional Building Rules Consent and thereafter shall be maintained to the satisfaction of Council.

3. The privacy screening (fixed obscure glazing) as depicted on the proposal plans shall be installed prior to occupation of the building and thereafter shall be maintained to the satisfaction of the Council.

4. Building levels, site levels and back of footpath levels shall be submitted to and approved by Council prior to Provisional Building Rules Consent and thereafter shall be maintained to the satisfaction of Council.

5. Final details of the downpipe positioning on the front verandah including the material and size shall be submitted to and approved by Council prior to Provisional Building Rules Consent.

6. Final details of stormwater disposal arrangements shall be submitted to and approved by Council prior to Provisional Building Rules Consent and thereafter shall be maintained to the satisfaction of Council. The following requirements shall be complied with:

The connection of stormwater to any part of Council’s underground drainage system shall be in accordance with Council’s guidelines.

7. A detailed landscaping plan specifying all areas to be landscaped, species to be used, and mature height of plants shall be submitted to and approved by Council prior to Provisional Building Rules Consent.

8. Sun shading devices shall be applied to the northern facing openings to all dwellings to achieve an adequate level of sun protection. Details shall be provided to the satisfaction of Council prior to or at the time of Provisional Building Rules Consent.

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1	I have given careful consideration to the evidence led in this matter and to the submissions of counsel. I note, with some surprise, that the Council has elected to lead no evidence, expert or otherwise. While that is not, in itself, conclusive, and accepting that this is an expert Court capable of reaching its own conclusions on planning issues, the force of Ms Savva’s submissions inevitably has been weakened by the absence of any expert planning evidence to support them.
2	I note also that the proposal was recommended for approval by Council’s own planning staff, with the support of the Council’s Heritage Adviser, Ms Vines, and that the evidence of Mr Harry as to the proposal’s compatibility with the character of surrounding development and the heritage and townscape qualities of the existing building on the subject land was uncontested.
3	Ms Savva founded her submission that the proposal represented an overdevelopment of the subject land on four grounds:

4	Whether the proposal met the relevant DUF turned, in Ms Savva’s submission, on whether it was properly characterised, in the terms used in Precinct Principle 8, as "a residential flat building contained within an existing building", in which case the DUF was 250m², or "a residential flat building not contained in an existing building", in which case the DUF was 500m². Because the proposal entailed an upper level extension to the existing building, Ms Savva submitted it was properly characterised as the latter, such that, with a required DUF of 500m² for the rear dwelling, a total site of 1,500m² was required to satisfy Precinct Principle 8, whereas the total site area available was 1,072m².
5	I agree with the evidence of Mr Batge and the submission of Mr Botten that the proposal is consistent with the spirit, if not the letter, of that part of Principle 8 requiring a DUF of 250m² for a residential flat building contained within an existing building, particularly because the proposal does not extend beyond the footprint of the existing building. To conclude otherwise would require a very literal approach to the wording of the Development Plan, an approach spoken against by the relevant caselaw on the correct approach to interpretation of the Development Plan.
6	The second of Ms Savva’s grounds, that the proposal did not provide sufficient landscaped open space, was based on two propositions: first, that the proposal was required, by Precinct Principle 14, to provide at least 30% landscaped open space, and second, that the definition of "landscaped open space" required space so designated to "incorporate substantial landscape planting".
7	The evidence of Mr Batge was that the proposal provided 28.9% landscaped open space, and arguably, only needed to provide 20%, because, in the terms used by Precinct Principle 14, it was "within an area in which single storey frontages to a street prevail". Mr Batge estimated that approximately 75% of frontages within the Childers Street frontage of his locality (the only relevant frontage, in his opinion) were single-storey. From my observations on the view, I am satisfied that single-storey frontages certainly predominate, if not to the extent suggested by Mr Batge, and that the proposed landscaped open space provision comfortably meets Principle 14. To ensure that "substantial landscape planting" is actually incorporated within the landscaped open space areas of the proposal, it is merely necessary to require a landscaping plan, incorporating details and locations of landscaping, to be submitted to the Council prior to the issuing of Building Rules Consent.
8	Ms Savva’s third ground, that the proposal would cause additional overshadowing to the residential flat building to the east, was conceded in evidence by Mr Batge, who pointed out, however, that the additional overshadowing was minor, affecting only the western front portion of the adjoining building, which would continue to receive substantial morning light into its living areas, located on its eastern side.
9	On balance, I am satisfied that the additional overshadowing occasioned by the proposal is not of such consequence as to justify its rejection.
10	The fourth of Ms Savva’s grounds, that the proposal created the potential for overlooking of adjoining dwellings, has already been addressed in the proposal plans by the incorporation of obscure glazing to a height of 1.7m in upper level windows. Ms Savva acknowledged this but pointed out that Council Wide Principle 44 (Visual Privacy) envisaged use of obscure glazing in "non-habitable" rooms. Principle 44 refers to the application of a range of techniques to prevent overlooking, and provides a number of examples. It does not preclude the approach proposed, and I am satisfied that Principle 44 is met by the proposal.
11	Having regard to all the above, I have concluded that the subject proposal is in general conformity with the relevant provisions of the Development Plan and warrants Provisional Development Plan Consent.
12	Having heard the parties on conditions, the order of the Court is that the decision of the Council is set aside and Provisional Development Plan Consent granted to Development Application DA/44/2004, subject to the following conditions: