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Dening & Stamoulis v The Barossa Council & Ors [2005] SAERDC 9 (11 February 2005)

Last Updated: 15 February 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.

DENING & STAMOULIS v THE BAROSSA COUNCIL & ORS

Judgment of Commissioner Green

11 February 2005

LOCAL GOVERNMENT - TOWN PLANNING

Development Act - applicant appeal - refusal by the Council to tourist accommodation (four units) in association with and to rear of existing B & B and (historic) dwelling - Residential Zone and Historic (Conservation) area - neighbours joined as respondents - nature of proposal explored - locality in two halves - land use and scale acceptable in zone and locality - expert evidence supports safety, access, traffic generation, parking (revised layout) and servicing aspects - nuisance from noise, dust, privacy loss considered; fencing, landscaping, screening amendments and conditions to address - stormwater disposal and energy efficiency considered - impact on heritage building and Murray Street streetscape considered; separation, distance, backyard nature and partial screening ameliorating factors - effect of built form, flat roof, two storey, siting to boundaries, modern style, tree retention and further landscaping on visual amenity and character of rear half of locality considered - amended building siting, further landscaping detail, side fencing suggested and offered - locality context/characteristics important factor - proposal as amended sufficiently in conformity with Development Plan as a whole - appeal upheld, decision of the Council reversed - conditional Provisional Development Plan Consent granted.
Development Act 1993; Development Regulations 1993, referred to.
Barrick Pty Ltd v The Barossa Council [2004] SAERDC 103, considered.

DENING & STAMOULIS v THE BAROSSA COUNCIL & ORS
[2005] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1This matter is effectively an applicant appeal (appellant owners substituted for Milne & Zappia Architects), against the decision of The Barossa Council (the Council) to refuse Development Application No. 960/00783/04, made under the Development Act 1993 (the Act), seeking Provisional Development Plan Consent to construct tourist accommodation (4 self-contained units) in association with existing lawful bed and breakfast (B & B) accommodation and dwelling, at Tanunda.
2The Council refused the Application, quoting numerous provisions of the Development Plan with which the proposal was said not to comply (Exhibit R1, p.89).
3A summary of some of the relevant details in this matter is as follows:

Registration of Application (fees): 25 March 2004

Subject Land Address: 6 Murray Street, Tanunda

Existing Use: Bed and breakfast accommodation (2 bedrooms) and dwelling ("Paranook")

Proposal: Addition of 2 two-storey buildings with four units together with associated car parking, landscaping and fencing

Relevant Authority: The Barossa Council

Appropriate Development Plan: The Barossa Council consolidated version 25 March 2004

Relevant Zone/Area: Residential/Historic (Conservation) Policy Area – Murray Street Tanunda (in part)

Date of Decision: 7 September 2004
Appeal Lodged: 14 September 2004

Conference: Concluding 15 October 2004

4The Court viewed the subject land and the locality on the morning of Monday, 6 December 2004 in the presence of the parties. Witnesses providing evidence to the Court comprised for the appellant, Ms J Nolan MPIA, an experienced consultant town planner (Exhibit A4), Mr P Weaver, an experienced consultant traffic engineer (Exhibit A5), Mr DR Brown, an experienced consultant architect specialising in heritage architecture (Exhibit A6); for the Council, Mr J Smith, an experienced consultant town planner (Exhibit R3), Ms M Mellen, an experienced consultant traffic engineer (Exhibit R2) – not required for oral examination; for the 2nd Respondent, Mr DH Brown, a lay person representing the adjoining owner company which land includes a Right of Way (RoW) driveway; and for the 3rd Respondent, Mr P Lawrie in person, as well as Ms G Nelligen (partner of counsel for the 3rd Respondent), Ms M Thwaites (partner of the 3rd Respondent) and Mr C Rogasch, all lay persons and residents of Maria Street or the RoW giving their impressions on the amenity of the area and the likely effects of the development on it. In addition, the Court also noted the report of the Council’s professional town planning staff with recommendation for conditional Provisional Development Plan Consent (Exhibit R1, pp.69-88) and the recommendation of Council’s heritage adviser (Mr S Hosking) that the proposal "will not adversely affect the heritage value of the place" (Paranook), (Exhibit R1, p.84). The Court also received a range of other exhibits including plans, sketches, certificates of title, copy documents and literature from Tourism SA.

The Subject Land

5The subject land is an "L" shaped parcel, comprising Allotment 556, FP 172007, contained within Certificate of Title Volume 5676 Folio 465, together with a free and unrestricted RoW over privately owned land marked "A". It has a frontage to Murray Street of approximately 24.34 metres, a depth of approximately 77.25 metres, an area of some 2352 square metres, and it abuts the RoW piece A, for a length of some 40 metres. The RoW is some 5.83 metres in width and some 90 metres in total length and it provides access to Maria Street some 23 to 24 metres to the north. Four Certificates of Title (including the subject land) have similar rights of way over land marked "A", which is held with a large Allotment 3 (Volume 5669 Folio 152), the owner of which is the company that the 2nd Respondent represents (refer Exhibit A2). I agree with Mr J Smith that the RoW is not a road or street in terms of the Development Plan guidelines, but is a private driveway.
6The so-called front (eastern) half of the subject land, fronting Murray Street, contains Paranook, an impressive residential building from the turn of the century and of Victorian architecture. It is identified as a Contributory Heritage Place (Figure HC/5) and Contributory Place (Table Baro/13) in the Development Plan. Photos of it taken by Mr DR Brown are shown at pp.1, 7 and 9 and rear garaging/shedding on p.12 of Exhibit A6. It is a single storey building and I estimate that it has external wall heights of up to 3.6 metres (but 2-3 metres more in the gable ends facing the east and south), and a highest ridge height in the order of 7 metres above ground level. It has a front garden, wrought iron/plinth/pillar front fence and a 3.5 metre wide, hedge lined, gravel driveway along its southern side in keeping with the period of the building. The building is currently approved to house two (2) B & B style visitor/tourist accommodation suites in the north-eastern corner, with the balance of the building remaining as a dwelling (Exhibit R1, p.99 and floor plan at p.100). The appeal and hearing have proceeded on that basis (Exhibit R1, p.96), notwithstanding signage at the front of the property implying that the dwelling portion has been/is used for further visitor accommodation suites. That situation is to be ignored in the consideration of this matter, though I have not overlooked the submission of counsel for the Council that its further use for tourist accommodation should be contemplated, prior to the development of a new building for such purpose.
7The existing B & B component is managed by an independent group – Getaways Reservation Services, with an office in Tanunda and, on the evidence of Ms Nolan, has recent occupancy of 50% and an expected occupancy of 70%. It runs along typical lines for self-contained, non-hostel accommodation of this type and outlined by Ms Nolan at pp. 4-5 of Exhibit A4.
8On the rear (western) half of the subject land is a well landscaped garden with several (at least four) mature trees behind Paranook; a fenced swimming pool/barbeque area with shed and gazebo in the northern corner, and across the rear of the land is a hard stand, gravelled carparking area and combination shedding/garaging structure and with a new, perhaps 1.8 – 2.0 metre high, green Colorbond fence along the western boundary and a 1.2 metre lower, older GI fence to the northern side boundary. The driveway from the front connects with the open and covered parking areas, with a rear driveway access through to the RoW and thence to the north to Maria Street. At present both driveways (front and rear) are utilised for ingress and egress.
9The front half of the land is designated within the Historic (Conservation) Policy Area – Murray Street Tanunda, as referred to above and also shown on MAP Baro/47, though there is a discrepancy in its description with the Policy Area name at p.247 of the Plan, compared to that on the Map and Figure HC/5. The rear half of the land is not within the above or any other Policy Areas and the whole of the land is within the Residential Zone.

The Proposal

10The proposal before the Court contains a progression of amendments made post the Council decision and prior to and during the hearing arising from the evidence of the experts. They are all minor and do not change the purpose or nature of the proposal and can be properly considered and determined by the Court. The proposal comprises Exhibit A7, drawing No. DA1, Issue D; Exhibit A1, drawing No. DA2, Issue C; and with further amendments offered (still to be detailed) including a revised car park layout with spaces to be angled, not at 90 degrees to the manoeuvring area, and with a likely 10 car space provision; together with directional signage in the car park for vehicle drivers and fencing details to the northern boundary of the car park of some 1.8 metres or thereabouts.
11The proposed development is for the removal of the mostly corrugated galvanised iron garaging/shedding at the rear and the construction of two, two-storey buildings linked by a common external stairway and deck, to be used as four tourist accommodation units, managed in association with the Paranook B & B accommodation facility. Each unit (one at each level of each building), contains two bedrooms with two bathrooms/toilets, and open kitchen/meal/lounge area and with direct access to external decking areas. Each unit has an internal living area of 68 square metres (272 square metres in total). A single storey, externally accessed communal laundry and store (10 square metres) adjoins on the north eastern side, providing a total floor area of 282 square metres.
12The buildings are to be sited in the rear western corner of the subject land:
•some 21 metres west of the rear of Paranook;
•2.5 metres from the southern boundary;
•2.4 metres stepped/staggered to 3.8 metres from the rear western RoW boundary (except for two upper level awnings set back 1.8 and 2.0 metres); and
•some 18-21 metres from the northern boundary.

13The building is to have two-storey walls and combined low parapets with heights of 6.0 and 6.4 metres and with approximately 2.8 metres internal floor to ceiling heights deduced from the plans. It is to have a flat, non-visible roof and external materials and colours comprise:
•a combination of rendered ‘Unitex’ panelling (Solver ‘Kanga’ a brown/grey), textured timber plywood panelling (jarrah colour stain) and split face quartz concrete block work (assumed to be light cream);
•silver anodised aluminum window frames and tinted glazing; and
•deck balustrading generally of open stainless steel wiring, slender poles and top and bottom rails (deduced from the plans).

14In the words of Mr DR Brown (Exhibit A6) "it is to be distinctly modern". Elsewhere and during the hearing it was referred to as cubist and minimalist in its expression.
15External fencing is to comprise the existing 1.8–2.0 metre green Colorbond fence for most of the western boundary (and returning for a small length of the southern boundary), but with low open style, tubular or other fence either side of the driveway adjacent the car spaces; and on the northern side (oral evidence/submission) of the car park, potentially a 1.8 metre solid fence with lattice above (Nolan). A substantial hedge exists along most of the southern boundary except for the far west side and it is assumed to be retained.
16A car parking area is to be provided in the north eastern portion of the rear half of the land. On the evidence and submissions, that shown on Exhibit A7 is to be further modified to provide for 10 angled spaces (probably 6 on the north and 4 on the southern side), and constructed and surfaced with white gravel/crushed rubble as per the existing driveway. Egress only, in a modified form to the current position, is proposed to the RoW and ingress only is to be allowed from Murray Street, to achieve a one-way vehicle movement flow through the subject land. The existing driveway connecting to the current rear parking area is to be modified and redesigned to angle diagonally to the north and to pass through existing garden areas in the rear (western) half of the land, so as to allow for the retention and preservation of at least three mature, attractive trees (on earlier plans some were required to be removed) including a large fruit tree and a young Oak tree.
17In addition to the three mature trees retained on site, three Poplar trees on the RoW, very near the subject land boundary are also shown to be retained and, on the evidence, trimmed to facilitate sight lines for existing drivers. Indicative planting only is shown around the car park and in front of the proposed buildings, together with indicative paved areas in-between and to the front and rear of the buildings.
18Both expert planners giving evidence (and the Council’s reporting officer) formed the opinion that the nature of the proposed development was for tourist accommodation units in association with the Paranook dwelling and B & B units (together with ancillary car parking, landscaping and fencing). None of those persons formed the view that the proposed buildings were "outbuildings" in the way that such term is used in a town planning sense within the Development Plan (and noting that an outbuilding of greater than 75 square metres in floor area is listed as a non-complying development by Principle 16 in the Residential Zone). Nor was it considered to be a "motel" as defined in the Development Regulations 1993 Schedule 1, presumably given the absence of on-site management and potentially the degree of self-containment of the units with meals/kitchen facilities. Even if it were so determined, nothing turns on such a description. I agree, despite the submissions of counsel for the 3rd Respondent (and having regard to the common dictionary meaning of "outbuilding"). The proposed buildings will be substantial in all senses and have their own presence, and their use for tourist accommodation is in conjunction with Paranook. They are not of a type or nature to be readily or appropriately classed as outbuildings.
19The proposal is at its most basic level, a form of residential land use (tourists, travellers or visitors residing in the units on a short term basis), though run as a business and a commercial enterprise. Nevertheless, this does not mean that it fits comfortably with a "commercial" land use description in the way that such term is usually expressed in the Development Plan, frequently including reference to warehousing, showrooms, service trade premise uses and activities.
20Hence, the Development Plan provisions expressly dealing with outbuildings and commercial development are not considered to be of particular relevance to assessment of this application. In that, I agree with Ms Nolan and Mr Smith.

The Locality

21Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific development proposal is likely to impact upon, to a notable degree, the locality and its definition in this matter is to be based primarily on visual, character perception, traffic and noise factors.
22I generally agree with the locality of Mr Smith (addendum to Exhibit R3), which is somewhat more extensive than that of Ms Nolan (Exhibit A4) to the north-east, east and south-west, based on built form character perception and vehicle movement. I therefore consider the locality to extend as follows:
•to the north to the corner of Maria and Theodor Streets (including Nos. 2, 6, 8 and 1, 3, 5 Maria Street), and along Theodor Street to the Murray Street intersection;
•to the east to include the frontages of properties and the built form along Murray Street from Theodor Street and Fielder Street (including Nos. 8, 10, 12, 14, 16, 18 and 7, 9, 11, 13, 15, 17 Murray Street);
•to the south, south-west to include the building/tiles supplier premises and built form of dwellings opposite along Murray Street (probably numbered 3, 5 and 2 Murray Street); and
•to the west to include the dwelling well setback and numbered 2A Maria Street and the rear area of the building/tiles supplier, and other vineyard and semi-rural land.

23The locality is located at the southern (south-western) entrance to Tanunda township. It is readily divided into two differing halves, as Ms Nolan and Mr DR Brown have done – the Murray Street frontage (the front half) and the rear of Maria Street, RoW frontages and semi-rural land intervening (the rear half). The former is mostly within the Historic (Conservation) Policy Area – Murray Street Tanunda, a policy layer under the Residential Zone and also embracing part of the Town Centre Zone to the north-east (refer Maps Baro/20 and 47 and Fig HC/5), whilst the latter is not affected by any policy area layer under the zone layer and is mostly zoned Residential Zone but with a small part to the west in the Recreation Zone.
24Murray Street is designated a Secondary Arterial Road carrying in the order of 6,800 vehicles per day (annual average) and it is a dominant feature in the locality and comprises the main street of Tanunda. It has a well maintained avenue of distinctive, attractive street trees and mostly older residential buildings of heritage value (many designated as State Heritage Places, Local Heritage Places or Contributory Places – refer Fig HC/5), some of which have been converted to other uses such as for a café adjoining to the north, and a liquor shop. A modern church and some modern dwellings exist on the eastern side of Murray Street, one of which is used for consulting rooms. Murray Street is heavily used and frequented by tourists and other visitors to Tanunda and the Barossa Valley generally.
25Paranook (and the dwelling adjoining at 4 Murray Street) is an important attractive feature in that streetscape. The character of this part of the locality is photographed and described in detail by Mr DR Brown (Exhibit A6, pp.5-12) and described by Ms Nolan (Exhibit A4, pp.6 and 7). It is a mixed residential and retail-business area. The rear of the subject land and the proposed siting of the buildings will only be partially visible from Murray Street from down the existing narrow driveway access and obscured by retained trees at the rear, and perhaps, and to a lesser extent, from the driveway entrance to the adjoining café.
26Built form has typically recti-linear plan forms, pitched roofing (though of differing angles, styles and materials) and masonry wall materials (stone, brick or rendered), together with some timber and other panelling. Setbacks, to front and sides are highly varied from nil to substantial. Murray Street has two traffic lanes and unrestricted parallel parking lanes on both sides of the roadway.
27The rear half of the locality is focussed on Maria Street, a narrow public road with some 5.5 metre wide bitumen pavement and kerbing (though it widens somewhat north of the Theodor Street intersection) where it services a primary school and a church/community centre. It has an informal, gravelled "extension" along the private, RoW driveway. A number of dwellings front Maria Street and the extending RoW, but it is the rear yard area and an alternative access for the subject land and 4 Murray Street that also adjoin the RoW. A very large cream coloured shed and rainwater tanks exist in the rear yard of 4 Murray Street adjoining the subject land to the south. The two nearest dwellings to the subject land (No. 1 adjoining to the north and 2 Maria Street opposite and on the RoW to the west and angled at perhaps 45 degree to it) are cream brick with low pitched, tiled or iron roofing, open front yards and are dwellings of modern (50s-60s) style. They rely solely on the RoW for access as does another modern brick dwelling (No. 2A) setback approximately 40-50 metres to the west and obscured by vegetation. The next nearest dwelling (3 Maria Street) is on the bend and it is of semi-modern appearance (low angled iron roofing with panelled walling) but, putting it kindly, it is in a state of rebuilding and further development. Modern (70s style) brick units with low angled roofing adjoin it to the north up to the Theodor Street corner. Opposite and some 50 metres on an angle from the subject land is 6 Maria Street, an "art deco" period (Ms Nelligen), brick dwelling with pitched roof and partially hidden by vegetation. The nearest dwellings of heritage value are 5 Maria Street (a Villa and comprising the church manse) on the north eastern corner of Maria and Theodor Streets and opposite at 8 Maria Street, of Villa style, some 80 to 90 metres to the north of the subject land and with the former perhaps just visible from it.
28Hence, it is evident that heritage value dwellings in the rear half are well removed from the rear of the subject land and that modern dwellings of varied style, condition, quality and built form characteristics make up the general built form character of the rear half of the locality.
29In the rear half of the locality vineyards impinge into the township and they, together with several trees and distant partial views to rural areas, provide an indistinct township edge and semi-rural character. Amenity levels in this half are varied visually, with some negative built form elements and with a quiet, semi-rural feeling of "being tucked away" from the main street area.
30Overall, the locality has mixed character (built form, land use, vegetation), mixed levels of aural amenity (noisy along Murray Street but quieter away from it, except in the vicinity of other activity nodes such as the school/church), and mixed levels of visual amenity (heritage value buildings, trees, rural elements are positive; whilst sheds, 50s-60s-70s style buildings, fencing, overhead poles are negatives).

Relevant Development Plan Provisions

31I have considered the various provisions referred to by the town planners, other experts and by counsel and I find the following to be the relevant provisions in the Development Plan for the assessment of this matter:

COUNCIL WIDE
Objectives: 1, 2, 5, 7, 8, 11, 24, 25, 27, 40, 41, 42, 43, 46, 71, 88, 90, 92, 94 and 95; and
Principles of Development Control: 1, 2, 3, 6, 8, 11, 66, 67, 68, 69, 72, 76, 98, 99, 108, 109, 112, 115, 118, 120, 123, 124, 125, 128, 130, 134, 135, 136, 138, 140, 190, 197, 205, 252, 264, 270, 271, 272, 280, 282, 291 and 292.

RESIDENTIAL ZONE
Objectives: 1, 2, 3, 4 and 5; and
Principles of Development Control: 1, 2, 8, 16 and 17.

Historic (Conservation) Policy Area – Murray Street
Objective: 1; and
Principles of Development Control: 4, 6, 7 and 8.

MAP Baro/1 (Overlay 1) Enlargement E, Baro/20 and Baro/47; and
Table Baro/4, Baro/6 (clause 2.0 only) and Baro/13.

Processing

32The proposal was classified a Category 3 development and the documents show that some 19 representations, including those from the joined parties and several of the lay witnesses, were received by the Council. No referrals to any government agencies appear to have been required pursuant to Schedule 8 of the Regulations.

Planning Assessment
- Land Use and Scale

33As outlined above under The Proposal and in line with the opinions of the two town planners who gave evidence, and the Council’s planning staff in processing and reporting on the application, the nature of the proposal is for tourist accommodation. It is not a motel, nor an outbuilding or commercial development as those terms are used in the Development Plan. Such use is neither a complying nor a non-complying development under the Act, and falls for consideration on its merits against the whole of the Development Plan. Non-residential uses not listed as non-complying in Residential Zone Principle 16, and subject to certain parameters in Zone Objective 2 and Principle 8, are contemplated in the Zone. In addition, the Historic (Conservation) Policy Area – Murray Street Tanunda, Principle 8 envisages "tourist accommodation" subject to certain parameters and the subject land straddles the boundary of that Policy Area with Paranook and the front half within it. I also agree with the town planning witnesses that whilst residential use is primarily envisaged (Zone Objective 1), tourist accommodation is, in principle, an acceptable land use in the Zone and adjacent to the Policy Area, subject of course to detailed assessment about its external impacts. Those relevant provisions and guiding parameters are as follows:

RESIDENTIAL ZONE
.....

Objective 2: A zone accommodating educational uses and other non-residential activities, which are small in, scale, benign in external impact and serve the needs of the local community.
.....
PRINCIPLES OF DEVELOPMENT CONTROL
.....

8 Development for non-residential purposes should only be undertaken where:

(a) the proposed activity is not liable to detract from the residential character and amenity of the zone;

(b) the design and appearance of the buildings are in keeping with the scale of residential development;

(c) adequate off street car parking is provided; and

(d) landscaping is provided to maintain the continuity of residential streetscapes and provide visual buffers.
.....

HISTORIC (CONSERVATION) POLICY AREA – MURRAY STREET TANUNDA
.....
PRINCIPLES OF DEVELOPMENT CONTROL
.....

8 Tourism accommodation should preferably involve the restoration and re-use of heritage buildings, with any new development being of a scale and form sympathetic to the historic character of the locality.

34With respect firstly to the scale of development, both expert planners were of the opinion that the proposed development is small scale. I agree, having regard to the proposed number of accommodation units, floor area, building height and spread/mass, its intended setting, and scale of parking or other associated areas and activities, Tourism SA literature in Exhibits A and B and the approach taken in Barrick Pty Ltd v The Barossa Council [2004] SAERDC 103. In a general sense, the built form scale is sufficiently in keeping with the scale of other residential development in the Zone and (refer below) of a scale sympathetic to the historic character of the front half of the locality, bearing in mind its separation and rear positioning relative to the front half.
35The proposal may in part, in a limited way, serve local community needs (friends, family, visitors of Tanunda residents, utilizing such accommodation), but in the main, that part of Objective 2 is not met. In the light of other clauses in the Plan, I do not consider that to be fatal to this Application.
36The other parameters dealing with parking adequacy, external impacts, residential character and amenity, form sympathetic to historic character and landscaping are dealt with hereafter.
37In my view, the proposed development and its land use may be acceptable and pass the first hurdle under the primary zoning, land use and activity considerations in the Plan.
38Further, from case law, I understand that it is not for the planning authority or this Court to determine the private economics or viability of the proposal (as alluded to by counsel for the 3rd Respondent), unless extreme circumstances were shown to exist in the public/community interest. That is not the position in these circumstances and as presented to the Court.
39Finally, counsel for the Council submitted, in the light of Historic (Conservation) Policy Area – Murray Street Tanunda, Principle 8, that the capacity within Paranook should first be fully utilized for tourist accommodation, before a new freestanding development to the rear is constructed. I consider that this is not required by the Plan in the light of the rear half and proposed siting not being within the said Policy Area, and is for the choice of the owners.


- Safety, Access, Traffic, Parking and Servicing

40Subject to certain further amendments to the parking area layout and directional signage for drivers, the two expert traffic engineers were of like mind about the majority of traffic engineering considerations and in the light of the Development Plan guidelines. In particular:
•adequacy of ingress (one way flow) from Murray Street via the existing driveway;
•an altered egress arrangement to the RoW, allowing for retention of the three Poplar trees and adequate sight lines for exiting drivers (subject to a condition ensuring maintenance of trimming at the lower level), low level new planting and low, open type fencing along the western side of the parking area, ensuring reasonable levels of safety;
•acceptable levels of traffic generation along the RoW, Maria Street and Theodor Street, with "minimal impact" on the residential street network;
•adequate car parking spaces, including a further reduction to 10 spaces (for the four new accommodation units, the two existing B & B units and one dwelling); noting the existence of on-street parking in Murray Street;
•delineation of parking spaces either by sealing and line-marking (Weaver) or raised marker delineators; and
•low levels of servicing required and able to be managed on the subject land.

41As alluded to, the car parking layout is to be revised to incorporate angled parking bays and a one-way flow from east to west (front to rear), together with internal signage discouraging contrary movement. I generally agree with and accept the assessment and conclusions of the traffic engineers.
42I have also had regard to the views of the lay person resident witnesses, particularly concerning the altered egress and potential for vehicle movement interference and risks, increased traffic volumes and consequences for the RoW and Maria and Theodor Streets, and nuisances from the practice of servicing vehicles, particularly a linen vehicle, apparently parking in the RoW and blocking access for others. I appreciate their level of concern, but conclude that the opinions of expert traffic engineers should carry greater weight, and that a condition of consent can be applied such that no service vehicles are to utilize the RoW for parking, standing or servicing the proposed development. Similar views were held by the planning experts.
43Subject to the above provisos and an appropriate amended parking plan being submitted, I consider that the proposed development sufficiently meets the relevant Development Plan guidelines under this grouping of issues.

- Nuisance (Noise, Dust, Privacy)

44Zone Objective 2 envisages non-residential activities that are "benign in external impact", whilst Zone Objective 3 (and other references in the Plan) seek "pleasant ... living environments". Having regard to the dictionary definition of benign and the Development Plan context, I take the phrase "benign in external impact" to mean low, limited, neutral or favorable to residential use, consistent with the view of Ms Nolan.
45Council Wide Objective 43 encourages tourist facilities to be "located and designed to minimise impacts on surrounding uses ...".
46Council Wide Principle 11(a)(c) discourages development likely to result in nuisance "by the emissions of noise ... dust ... and unreasonable loss of privacy". Council Wide Principle 99(f) discourages tourist development that would "create excessive noise or such other disturbances causing a nuisance to nearby residents". Finally, under this heading, Council Wide Principle 28 is a guide to minimise "direct overlooking from upper level habitable room windows and external balconies, terraces and decks to habitable windows and usable open spaces of other dwellings" and design techniques outline ways to do so.
47With regard to noise, from the extra vehicle movements generated by the development on unpaved surfaces, the extra number of vehicle start-ups, doors opening and closing, and people talking within the parking area, from the extra number of people involved in activities in and around the existing swimming pool area and from the proposed units themselves (people on decks or inside), no specialist acoustic engineering evidence was produced to the Court but the expert town planners proffered opinions on this topic. Lay persons also provided evidence from their experience living adjoining to the north or opposite the subject land to the west, and I have formed my own opinions and conclusions arising from the view, the evidence, and from my experience.
48Whilst there is likely to be some increase in noise nuisance to nearby residents from the sources mentioned, I consider that it is not likely to be excessive, similar to that which could potentially arise from other infill housing envisaged for the Zone by Principle 2 (on 210-300 square metres minimum site areas per dwelling – perhaps 4 to 5 dwellings in the rear half of the site), but subject to certain restrictions on the hours of use of the pool, where none exist at present with the approved B & B use, being reasonably applied (as invited by the appellants), and confirmation of after hours management telephone numbers should there be any complaints, also being reasonably required. In addition, an increased fence height to the northern boundary of the parking area, to minimise noise transfer to the nearest bedroom windows of 1 Main Street, can be reasonably required as a condition and as supported by Ms Nolan and submissions of counsel for the appellant. Accordingly, I am satisfied that the relevant guidelines will be sufficiently met.
49With regard to additional dust generated by additional vehicle movement in the car parking area and the RoW (raised as an issue by near neighbours), again there may be some further nuisance from that source, but in a semi-rural environment adjoining vineyards and where unsealed roads are common, it is not likely to be at a level warranting the developer appellant to be required to seal the car park or the affected part of the RoW.
50Finally, with respect to minimising privacy loss, notwithstanding the opinion of Mr Smith, there is some opportunity for unreasonable overlooking of the windows of the angled dwelling at 2 Maria Street (opposite to the west) and its front private open space, though it is open to general viewing by passers-by, from the upper level meal/kitchen corner windows in each of the buildings and from the northern most side of the upper level deck of the northern building. With respect to the former, sill heights or fixed opaque glazing can and should be required to a height of 1.5 metres above floor level, as suggested in DT 128.1 and for the latter, a screen in terms of DT 128.2 can and should be applied to that northern side of the upper level deck. An acceptable level of privacy to adjoining neighbours should then result.
51With the conditions and provisos outlined, I consider that the pleasantness of the residential "living" environment will be sufficiently maintained.

- Stormwater/Energy Efficiency

52Certain Development Plan provisions listed above encourage more efficient, sustainable stormwater management and re-use practices. Incorporation of a rainwater tank(s) and perhaps use of the overflow water on gardens, was suggested as appropriate by Ms Nolan. I agree. Nothing is before me to indicate that the proposal cannot properly incorporate an acceptable stormwater management system, to the reasonable satisfaction of the Council. Further, details should be provided and they can and should be confirmed by conditions of any consent granted.
53The Development Plan provisions listed above also encourage greater energy efficiency in building design of dwellings (though that is not exactly what is proposed here). Whilst a roof pitch envisaged is not achieved for better angling of solar collectors, the roof orientation is acceptable and according to Ms Nolan, a small area of the roof of each building (logically central to it, to minimise visual appearance), could house an angled stand to incorporate such collectors and cells. In my view that would be appropriate. Many of the other guides for minimising the need for mechanical heating and cooling are achieved or appear capable of being achieved by the architect’s design proposal.

- Heritage

54The potential for negative impact by the proposed buildings on the heritage value of the adjacent Paranook a "Contributory Place" and the heritage character of the front half of the locality, Murray Street streetscape and the Historic (Conservation) Policy Area – Murray Street Tanunda, are important considerations in the context of the status and character of Tanunda as a whole.
55The expert evidence of Mr DR Brown (written and oral evidence), an independent person not involved in the design, with considerable architectural experience in the heritage conservation field, was of assistance to the Court and it was unrefuted by either of the expert town planners who gave evidence or by any other person. In his view, and I agree, the siting of the proposed buildings well to the rear of the large site, outside of the Historic (Conservation) Policy Area, its separation of some 20 metres from the rear of Paranook and with retained trees and garden setting intervening, and the limited glimpses from Murray Street only likely to be achieved from along two lengthy driveways, are important factors in assessment of the proposed building design. Retention of the trees was to him desirable, but not essential.
56In addition, the concept of a modern building design, reflecting its time, distinctly different to the Victorian architectural style of Paranook (and 4 and 8 Murray Street), is a design approach appearing to be favoured by the Plan, although there is some contradiction with Table Baro/6 clause 2.0 and diagrams, rather than the alternative of replication or reproduction of prior architectural styles and detailing (vide Historic (Conservation) Policy Area – Murray Street Tanunda, Principle 4 and elsewhere such as Council Wide Principles 258 and 262). Mr DR Brown is of the opinion that such an approach should particularly be the case for new buildings separated and well to the rear of an item of heritage value and not within the visual scope of Murray Street streetscape. He also felt that such design should not be unnecessarily restrained by the conservative conservation approach in much of Tanunda. I agree in the heritage conservation context. I also note his comments about the sympathetic and comparable building scale, including height and two-storeys, the façade modulation and materials and colours proposed and generally agree. He also considered that a reduction in the area and alteration to the rear garden area, which was not considered to be of heritage significance, were acceptable.
57The proposed buildings each will have the appearance of a flat roof. Mr DR Brown considered that form to be sympathetic and acceptable in terms of visual impingement on Paranook or the heritage character of the front half of the locality, I understand due to the separation, distance, background building nature and partial screening by retained trees and potential screening from additional planting. I have some reservations about that element in the heritage context, but given the above factors do not find that it is fatal to the Application. The relevant guidelines on heritage conservation and for the heritage character of the front half of the site and locality, are sufficiently met.

- Visual Amenity/Character of Locality

58I consider that Council Wide Objectives 8, 11, 92, 94 and 95 and Principles of Development Control 6, 112, 115, 118, 120, 190, 264, 271, 280, 282, 291 and 292; and Residential Zone Objectives 2 and 5, and Principles 1, 2, 8 and 17 are of particular relevance to the central issue in this matter of visual amenity and character assessment.
59The expert evidence is that the visual amenity of the front half of the locality and as discussed above, the heritage character of that part, will not be affected to any significant degree by the proposed development. I agree. Assessment of the degree of affect of the proposed development on the visual amenity and residential character of the rear half of the locality in the light of the relevant Plan guidelines, is to be undertaken in the context of residential development generally envisaged in the Residential Zone (Objective 4 and Principles 1, 2 and 17) and the specific locality context with its particular characteristics.
60The Residential Zone provisions mentioned above, clearly envisage medium density residential development on small site areas (perhaps 4 to 5 dwellings) and of up to two-storeys in height. The fact that a proposal might be the first of its kind in a locality does not necessarily weigh against it. In this case the proposal of two-storeys but only 6 and 6.4 metres in height is modest for domestic architecture, achieved by not incorporating a pitched roof, and it is consistent with and in keeping with the scale and height of buildings envisaged generally in the Zone (Residential Zone Principle 8(b)). Its siting is discussed later.
61It is also noted that Residential Zone Principle 1 seeks housing comprising a range of (dwelling) types and styles. The absence of a pitched roof form has been noted above. Plan provisions seeking "maintenance and enhancement" of residential character and amenity, such as Residential Zone Objective 5(a), do not infer, in my view, a replication or sameness of the 50s, 60s or 70s style, angle, height or materials of roof form that exist. I consider, exercising a professional judgment but no doubt tinged with an element of personal taste, that the appearance of the proposed buildings with articulation, varied materials and colours, varied openings and features to each side, with flat roofing, joined by light weight decking and set at an angle to each other and the rear boundary, to be visually attractive and represents an enhancement to the appearance and quality of the built form on site (the shedding/carport to be demolished) and on adjoining and adjacent sites as shown in photographs on p.11 of Exhibit A6. In addition, the materials and colours relate well to the local residential environment. I consider it to be complementary, compatible and sufficiently consistent with the varied built form in the locality, particularly in the absence of a definable predominant character. Ms Nolan agreed, and whilst Mr Smith had reservations, these did not appear to be strongly held and his evidence was confused. On the one hand he said with respect to the architecture of the buildings, and the roofing in particular, "it really matters not one way or the other", and that it was "neutral" and does not detract from residential character of the locality, but on the other he was not comfortable with the "fit" of the building in the locality, and that it could have been more consistent with other buildings in it. His emphasis on consistency, was not supported by the relevant Plan guidelines.
62Clause 2.0 in Table Baro/6 and the associated sketches of new building form relating to neighbouring building form, has been considered by all of the relevant experts. None put particular weight on it given the rear half siting and not as an infill development along a street with buildings of heritage value, and the somewhat contradicting approach embodied in it, compared to that in the Principles which seek to avoid replication of the older building forms.
63I now turn to a consideration of the siting of the buildings in relation to boundaries, well removed from the rear of Paranook, and in conjunction with retention and new generalised landscaping/tree planting proposals, as the two factors are interrelated.
64It appears that all of the mature trees on the site are retained, three or more in front and to the east of the proposed buildings and adjacent the revised driveway alignment as well as the three Poplar trees in the RoW. Given its rubbled/graveled, light construction form, I do not expect that it would cause damage to tree roots. No arborist or other expert evidence was received to the contrary. Substantial screening is achieved to that quarter, to be supplemented further.
65To the south and side boundary, the building is to be setback 2.5 metres in accord with Council Wide Principle 18 and Design Technique 118.2 and 118.3, and with space for three to four tall, slender evergreen trees such as "Pencil Pines" or "James Stirling – Pittosporum". The hedge is to be retained along that boundary further to the east. The view of the proposed buildings from that direction is in the context of and from the rear of unattractive yards/out buildings of 2 and 4 Murray Street.
66I expect, with the revised, angled parking area layout that there will remain perhaps two to three metre wide pockets of landscaping space for the planting of similar characteristic trees (as considered acceptable for the southern side), to provide screening and softening of proposed built form (sought by Zone Principle 8(d)) from the north, from 1 Maria Street and the vista extending along the RoW and Maria Street for perhaps 60-80 metres. The building is setback some 18 to 21 metres from the northern (north-eastern) boundary.
67Finally, considering the building setback and landscaping from the western (north-western) or rear boundary of the subject land and that which abuts the RoW. The proposed setbacks range from 1.8 and 2.0 metres upper level for awning overhangs, to a range from 2.4, 2.6, 3.2 and 3.8 metres from the two-storey building elements. These do not meet Principle 118, Design Technique 118.4, which for the height of the building, would mean a 6.4 metre setback.
68A Poplar tree exists 4 to 5 metres from the northern corner of the northern building and there is no proposal or evidence that it (or the others) are to be removed. I consider their retention as being desirable but not essential for the proposed development to proceed. The balance of the rear setback area, post-demolition of the garaging/carport structures, contains no mature trees and a substantial part of it, placing some reliance on the stipple symbol on the plans, is to be brick/block or hard paved. Two larger tree symbols are shown on the site plan in this area. This elevation of the proposed development will be in the view of the occupants of 2 Maria Street (the 3rd Respondent) and from the RoW users accessing the rear of 2 and 4 Murray Street and opposite to 2A Maria Street (the company represented by the 2nd Respondent). It may also be partly seen from further afield.
69Whilst I note that Mr Smith was happy with the rear building setback to the RoW, I have reservations with this aspect of the proposal in terms of dominance of the building elevation, and impact on visual amenity from that quarter. A substantial row of trees to generally screen and soften the building reducing its perceived height and bulk, is required and in addition I consider that the building should be setback further, perhaps up to another 2 metres to ensure that end. The consequence of such a minor resiting is that the proximity of the front decking to the branches of existing trees retained and potentially trimmed, needs to be carefully considered. Accurate information about the spread of bows and canopy needs to be shown and it may be that decks need to be modified to ensure sufficient retention of those trees and branches. I consider it to be achievable and I provide the opportunity to the appellant to also further amend this aspect of the proposal design.
70On the basis of the above, I am satisfied that the proposal would sufficiently meet the relevant Development Plan guidelines such that pleasant vistas and visual amenity will be enhanced and residential character maintained. In addition, such buildings and landscaping will not dominate or be unacceptably obtrusive in the locality.

Conclusions

71I have considered the evidence, what I saw on the view, assessed the proposed development against the relevant Development Plan guidelines and applied them in the Zone/Policy Area and locality context. I have weighed up and integrated all relevant considerations.
72I conclude that with the further several minor amendments offered or mooted above, the proposed development is likely to sufficiently comply with the Development Plan as a whole and thus is worthy of conditional provisional development plan consent.
73By Memorandum dated 23 December 2004, I advised the parties of my conclusions, and invited and provided the opportunity for the appellant to make further amendments to the proposal (as mooted during the hearing) and for the parties to provide further submissions regarding draft conditions. The amendments related to minor building resiting, upper level privacy features, parking area layout and landscaping, fencing and stormwater detail.
74At the resumed hearing on 2 February 2005, the appellant submitted further amended plans (Exhibit A9) and more detailed landscaping plans (Exhibit A10) prepared by Alan Cameron Landscape Architect. They are attached in reduced form to this judgment. In summary, the amendments comprise:
1. A resiting of the proposed buildings, 2 metres further to the east away from the rear western boundary, with such greater setback area landscaped with trees;
2. Upper level meals/kitchen windows to have a sill height of 1.5 metres above floor level;
3. Upper level deck to the northern building to have a 1.5 metre timber slattered screen on its northern side;
4. Revised parking area layout with 10 angled spaces and modified egress to the RoW and with perimeter landscaping provided;
5. Detailed landscaping including depiction of all trees and hedge retained and new planting to the southern, western and northern boundaries and within the development area, with species, pot sizing and numbers specified;
6. New 2.0 metre Colorbond fence to the northern boundary with low open style fencing to the west of the parking area adjoining the RoW;
7. Indicative stormwater, rainwater collection tanks and overflow pipe to Murray Street depicted.
75I consider the further amendments to be minor, not changing the nature or purpose of the proposal and that can be properly accepted by this Court through the appeal/hearing process.
76The Council (and 3rd Respondent) sought the sill height (or fixed opaque glazing) of the upper level meals/kitchen window to be 1.7 metres above floor level and the appellant was agreeable to this variation by way of a condition. They also sought a 1.7 metre height for the upper level deck screening to which the appellants were opposed, and I find that given the angle, distance, existing and proposed screening, nature of the areas overlooked and intermittent use of the deck, that 1.5 metres is adequate.
77The parties made further submissions regarding conditions and in the main there was reasonable agreement concerning content, if not wording. Areas of disagreement remaining included:

1. Deck screen height (addressed above);

2. Hours of use of the pool, gazebo, barbeque fenced area, with a morning start time sought by the respondents and with the appellant not accepting such restriction, or any restriction on such use by occupants of the lawful dwelling on the site, or any restriction on location of any general barbeque activity on the land;

and by the 3rd Respondent:

3. Raised sill heights for all, upper and lower levels, westerly facing bedroom windows;

4. There be a requirement for an on-site resident manager;

5. There be a requirement for the proponent to enhance/maintain the shared RoW in the light of additional traffic generated by the development over it;
6. Floor to ceiling height be reduced at the upper and lower levels from 2.8 to 2.4 metres;
7. There be a restriction on occupant numbers in the four units of sixteen (excluding children under five years);
8. That there be a requirement of the additional planting on the westerly side of the fence to the pool enclosure to avoid direct visibility of this area across the new egress/driveway for the occupants of 2 Main Street (opposite).
78I have carefully considered the submissions, and respond and determine as follows:
1. A morning start time is appropriate to avoid potential use after midnight and in the early hours of the morning. However, I consider it only appropriate to apply the restrictions to the B & B guests and their visitors, not to any occupants of the dwelling. I consider that such element, if applied, would be invalid on the basis that it would affect an existing lawful activity not part of the subject development and that it would not comprise a reasonable or relevant restriction to apply to the application in question. The likelihood of additional barbeque activity occurring around the property, when a barbeque facility is provided within the fenced area is not considered to be high and a restriction on any occasional use is not considered reasonable in all the circumstances.
2. Privacy loss from overlooking at the proposed upper level bedroom windows is not sensitive (and in any event occurs also in the reverse direction), and with marginally greater setback and tree planting it is not assessed to be reasonable or necessary.
3. On-site resident management is not part of the proposal and contradictory to it and there was no evidence led to justify such a requirement being imposed by the Court.
4. Additional traffic is not so significant to warrant the request; there is no expert traffic engineering or town planning evidence supporting such requirement; other more appropriate recourse is available for the affected parties, and this Court is loathe to transgress into any such exercise.
5. The question of height and visual impact of the building was dealt with in the reasoning above, it was not supported by any expert evidence, and is not considered necessary.
6. The suggested restriction is reasonable and such numbers were the assumption used by the expert traffic engineers. The condition would prevent occasional "stacking" of rooms by people sleeping on sofas or swags or the like and thereby potentially generating additional traffic.
7. This request is not considered to be reasonable given distance, partial tree screening and the nature of the area viewed.
79Accordingly, I have drafted conditions considered to be reasonable, relevant, appropriate and necessary to be attached to the consent for the proposal.

Decision

80 The appeal is upheld and the decision of the Council reversed. Provisional Development Plan Consent is granted subject to the following conditions:

1. The development shall be undertaken in accordance with the plans, drawings, specifications and other documents submitted to Council that are relevant to the approval of Development Application No. 960/00783/04 including the approved revised Floor and Site Plan described as DRG NO. ERD DA.01, Amendment E and the Elevations Plan described as ERD DA.02, Amendment D, all prepared by Milne & Zappia Architects and dated 20 January 2005 (marked Exhibit A9) and the approved landscape plan prepared by Alan Cameron dated January 2005 and described as "Concept Landscape Structural Planting Plan" (marked Exhibit A10), except where varied by the following conditions.
2. The establishment of all landscaping in accord with Exhibit A10, except that the "White Hill Cherry" is replaced by "Satsuma Plum" and utilizing advanced growth specimens where indicated, shall be completed within 3 months of the completion of the development and in any event prior to the occupation of either building and thereafter shall be maintained in good health and condition to the satisfaction of the Council at all times.
3. Any plants or trees depicted on the approved landscape plan (Exhibit A10) that become dead or diseased shall be replaced promptly by the person(s) having the benefit of this consent, with the same or similar species, to the satisfaction of the Council.
4. The canopy of the Plum tree and the Coral tree (described as "Tree 2" and "Tree 3" respectively on Exhibit A10) shall be trimmed to accommodate the upper level decking of each building prior to the occupation of either building. Such trimming shall be undertaken or directly supervised by a qualified arborist and shall be to the satisfaction of the Council. Ongoing trimming shall be undertaken by the person(s) having the benefit of this consent, on an as needs basis and in any event as reasonably requested by the Council.
5. The existing Carob hedge located along the southern side boundary shall be retained and maintained in good condition at all times.
6. Adequate details of stormwater management, including detention, retention (including size and location of a stormwater retention tanks(2)) collection, use and discharge to the Murray Street watertable, which will avoid nuisance or inconvenience to all adjoining properties, shall be submitted to and approved by the Council in writing prior to the issue of Provisional Building Rules Consent or final Development Approval. Such systems shall be constructed to the satisfaction of the Council prior to occupation of either building hereby approved.
7. The car parking area and driveway shall be constructed and drained in accordance with recognised engineering standards and surfaced with crushed rubble or quartzite gravel.
8. Car parking spaces shall be delineated in accordance with Exhibit A9 using raised/fixed permanent markers.
9. Internal signage shall be erected on the subject land directing a one-way flow of traffic from the front to the rear (east to west). Such signage shall be approved by the Council in writing prior to the issue of final Development Approval.
10. External lighting shall be erected in the car park and driveway areas and shall be of a low level bollard type. Such lighting shall not cause nuisance to adjoining residents and shall be approved by the Council in writing prior to the issue of final Development Approval.
11. The lower 2.0 metres of the Poplar trees (described as "Tree(s) 4" on Exhibit A10), located on the RoW adjoining the western boundary of the subject land shall be trimmed by the person(s) having the benefit of this consent, to ensure that adequate sightlines are provided and maintained on an on-going basis at the egress point of the car parking area, at all times to the satisfaction of the Council.
12. The windows of the meals/kitchen area in the upper level of each building shall have either a sill height or fixed opaque glazing to a height of 1.7 metres above the finished floor level of the upper level of each building.
13. A 1.5 metre high timber slatted screen shall be erected on the northern side of the upper level deck of the northern building as depicted in the east elevation on Exhibit A9.
14. The fenced area shown on Exhibit A9 enclosing the existing swimming pool, shed and gazebo (with BBQ facilities), shall not be used by B & B guests or their visitors after 9.00pm Sunday to Thursday, and not after 10.00pm on a Friday or Saturday and shall not be used before 6.30am on any day.
15. A sign is to be erected at the entrances to the fenced area referred to in Condition 14 advising guests and their visitors of the time restrictions set out in Condition 14.
16. An after-hours contact telephone number for the manager or delegate of the manager of the B & B accommodation facility shall be provided in writing to the owners and occupiers of the land comprised within Certificate of Title Register Books Volume 5809 Folio 291,Volume 5658 Folio 393, Volume 5310 Folio 445, Volume 5669 Folio 152 and Volume 5307 Folio 523. Such details shall also be provided to the Council in writing.
17. Should the after-hours contact telephone number referred to in Condition 16 change, the person(s) obtaining the benefit of this consent shall, within 7 days, notify the persons referred to in Condition 16 in writing of the new after-hours contact telephone number. Such details shall also be provided to the Council in writing.
18. No more than 4 people (excluding children under 5 years of age) shall be accommodated in each of the units hereby approved.
19. Service vehicles attending the subject land shall not stand or park on, or service the subject land from the RoW, enjoyed by the subject land at the rear. Service vehicles entering the subject land shall exit using the RoW.
20. The approved buildings shall be connected to the common effluent drainage system of the Council. All connections shall be at the expense of the person(s) obtaining the benefit of this consent. Details of the connection to the common effluent drainage scheme shall be submitted to and approved by the Council in writing prior to the issue of Provisional Building Rules Consent.
21. Measures shall be implemented by the person (s) obtaining and exercising the benefit of the consent, to the reasonable satisfaction of the Council during construction of the development in order to:
•prevent silt run-off from the subject land to adjoining properties, roads and drains;
•control dust arising from the construction of the development so that nuisance is not caused to owners and/or occupiers of adjacent land; and
•ensure that all litter and building waste is contained within the subject land in a suitable bin (with lid) or enclosure.
22. Any Council infrastructure that is damaged as a result of the construction of the development shall be repaired/reinstated at the cost of the person(s) having the benefit of this consent, to the written satisfaction of the Council.
81There will be an order to that effect.


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