Pickard Perkins Family Trust v City of Holdfast Bay and Ors [2006] SAERDC 2 (10 January 2006)

Last Updated: 12 January 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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PICKARD PERKINS FAMILY TRUST v CITY OF HOLDFAST BAY AND ORS

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

10 January 2006

LOCAL GOVERNMENT - TOWN PLANNING

Application for provisional development plan consent to build an apartment building with basement carpark refused by Council - appeal lodged against the refusal - heritage and amenity issues, set back of proposed building from street front and whether it is an overdevelopment of the site - decision of the Council confirmed - appeal refused.
Development Act 1993; Heritage Act 1993, referred to.

PICKARD PERKINS FAMILY TRUST v CITY OF HOLDFAST BAY AND ORS
[2006] SAERDC 2


THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

By application registered on 26 August 2004, the Pickard Perkins Family Trust ("Pickard Perkins") applied to the City of Holdfast Bay ("the Council") for provisional development plan consent to build a six level apartment building (including a basement carpark) on the land at 15 South Esplanade and 19 St Johns Row, Glenelg. The Council refused the application. Pickard Perkins appealed to this Court against that refusal.

The Site

2	The site for the proposed development comprises two contiguous allotments - one with a 14.4 metre frontage to the South Esplanade (Lot 116), and one with a 12.34 metre frontage to St Johns Row (Lot 115), together with a right of way which runs along the southern side of Lot 115 to the south eastern corner of Lot 116.
3	The total area of the site is approximately 1,183m2. Lot 116 presently contains a three storey apartment building, a mature Norfolk Island Pine tree near the South Esplanade frontage, a small shed and a large carport. Lot 115 presently contains a bungalow fronting St Johns Row and a large shed.

The Proposal

4	The existing buildings on the site are proposed to be demolished. The Norfolk Island Pine will remain. The plans originally lodged at the Council with the application showed a six level building containing a basement carpark, 14 residential apartments, 6 serviced apartments, roof garden areas and carparking at ground level.
5	Subsequent to the refusal of that proposal, the plans were amended in such a way that the building is 3 storeys above ground level at the South Esplanade, rising to 5 storeys, but then dipping to two and three storeys in the middle section of the building. The building on the amended plans will be two levels above ground level at the St Johns Row frontage, rising to 5 storeys, before dipping to the lower middle portion. The stated purpose of the amendments is to reduce the impact of the proposed building upon the State Heritage listed residential building to the south of the site.
6	The proposed building, as amended, will contain 15 residential apartments, 4 carparking spaces at ground level and 19 carparking spaces at basement level. Access to the basement level carparks is to be gained by way of a ramp off St Johns Row. Access to the ground level carparks is to be gained via the right of way from St Johns Row.
7	Mr Stimson, a town planner who gave evidence in Pickard Perkins’ case, described the proposed building in his statement in this way:

The design of the building is of a contemporary style, highly articulated with changes to setbacks, indented areas and changes to materials along the northern and southern walls. There is a podium to Level 2 and two mini towers to Level 4 at either end of the building. The gap provides direct sunlight to 16 South Esplanade.

8	Ms Bell, a town planner and architect who gave evidence in the Council’s case, said in her statement:

The building is to be constructed of:

•	Bluestone cladding to lower level;
•	Sandstone cladding to external solid walls of second and the front part of upper levels;
•	Alucobond cladding to the side walls at the centre and rear of the building;
•	A mixture of clear and translucent glass to external windows and glazed walls at first, second and part of third levels and balconies;
•	White glass to external walls of top level;
•	Copper feature wall on the northern elevation; and
•	Timber slats lining the pedestrian entrance at St Johns Row.

In summary, the building has a grey and sandstone coloured cladding at the lower levels and a glazed "box-like" structure at the upper levels.
Landscaping of the South Esplanade frontage ground level courtyard will consist of lawn and the retention of the existing tree and the rear entrance courtyard appears to comprise a small area of paving and a single tree. (sic)

The Locality

9	Each of the heritage architects and town planners who gave evidence identified a locality within which the proposal falls to be assessed. They were all different in their extent. The heritage architects tended to identify a relatively confined locality, taking in about four allotments either side of the site, together with the South Esplanade reserve and a row of properties on the eastern side of St Johns Row. The heritage architects differed slightly as to how many properties on either side of the site were taken in. Mr Battye also favoured a small locality, characterising the site as a component of an historic patch of residential development. The town planners identified larger localities, one of which extended from the southern end of The Grand Hotel south to Pier Street.
10	In our view, the locality takes in the row of properties east of St Johns Row between Kent Street and Elizabeth Street. It includes the South Esplanade properties from Elizabeth Street to a point two properties south of Kent Street. It also includes the beach opposite those foreshore properties, and some of the sea. The character of this area will be affected by the development.
11	The site has a residential building on each side of it on the South Esplanade frontage. Both of those buildings have been entered in the State Heritage Register pursuant to the Heritage Act 1993. The building on the southern side of the site is presently called "Albert Hall". It was built in 1877. It has two storeys wholly above ground, and one storey partially below ground. Mr Battye gave evidence that the present owners have extensively renovated Albert Hall over the last 15 years. It is now disposed as three residential flats. Mr Battye and his family live in one of those flats, which includes an outdoor area at first floor level on the northern side of Albert Hall, adjacent to the site. The building on the northern side of the site is called "Stormont". It is also a 19th Century mansion. It is two storeys high.
12	The locality appears to be entirely residential. Along the South Esplanade it contains both large residential towers and smaller residential flat buildings from the late 20th Century together with residential flat buildings from the early 20th Century. The streets further back from the foreshore contain some single storey detached dwellings, and some residential flat buildings of various heights. The locality is generally of mixed residential character, but retains, particularly, in the close vicinity of the site, a distinct 19th Century identity.

The Development Plan

13	The site is located in the Residential (Foreshore) Zone and in Policy Area 3 of the Holdfast Bay (City) Development Plan. It is common ground that the site is suitable for residential development.
14	The site appears on Holdfast Bay (City) Glenelg Activity Centre Building Heights Structure Plan Figure HoB/4 with a notation indicating that it has 5 storey development potential.

Heritage

15	The site has a State Heritage Place either side of it. The context within which those State Heritage Places are viewed from the South Esplanade will be affected by the proposed development - and indeed by any development on the site. The proposed development will also be seen from St Johns Row, which contains several Local Heritage Places.
16	Council Wide Objective 3 seeks:

A coastal city that retains, protects and enhances the environment, heritage, coast and community lifestyle, whilst encouraging tourism and business development ...

17

The Holdfast Bay (City) Development Plan contains a number of provisions which relate specifically to development which may be proposed where work is to be performed upon a heritage place or its site (see Council Wide Objective 58, Principles 110(d), 129, 130, 131 and 132). Principle 129 may also have wider application. The Development Plan also contains several provisions which apply directly to development which does not involve any physical change to a heritage place, but which will affect the context within which it is viewed:

Principle 123 (CW): Development on adjoining properties and on nearby properties where there would be an influence upon the character, integrity and setting to a designated State or Local Heritage Place or Contributory Place in the Historic (Conservation) Zones should afford recognition to and respect for the heritage value, integrity and character of the place or item, without necessarily replicating historic detailing, and with particular regard to the siting, boundary set-backs, style, form, window and door openings, front fencing, scale, materials, finishes and design features of the subject designated place or item.
Zone Objective 7: Retention of the heritage character of parts of the zone, especially along South Esplanade in Policy Areas 1 and 3.
Zone Principle 15: Along South Esplanade

...

(d) development of buildings should complement the scale, proportions, siting and materials of 19^th Century mansions existing in the locality.

18	It is clear to us from these provisions that the Development Plan recognises that development upon a site adjoining a State Heritage Place can affect the context in which that Heritage Place is viewed. Further, that such development should be designed having regard to the physical characteristics of the Heritage Place. Council Wide Principle 123 and Zone Principle 15(d) are highly specific as to the elements of any proposed building which must have regard to the Heritage Place. The exercise of assessing the proposed building under Council Wide Principle 123 and Zone Principle 15(d) does not involve making a judgment as to the merit of the proposed building itself, but of how appropriately it relates to the State Heritage Place.
19	Mr Butcher gave evidence in the Council’s case. Mr Harry gave evidence in Pickard Perkins’ case. Both Mr Butcher and Mr Harry are qualified and experienced heritage architects. Mr Bateup, an architect and urban designer, also gave evidence regarding heritage issues in Pickard Perkins’ case. Mr Stimson and Mr Burns, both of whom are town planners, gave evidence in Pickard Perkins’ case. Ms Bell, an architect and town planner, gave evidence in the Council’s case. All of the town planners gave evidence relevant to the resolution of the issues concerning heritage. Each expert had a different set of opinions in relation to those aspects of the proposed building referred to in Council Wide Principle of Development Control 123 and Zone Principle 15(d). We have carefully considered all of them.
20	In our opinion, the materials proposed for the building do not offend Council Wide Principle 123 and Zone Principle 15(d). However, the scale, proportions and form of the proposed building are inappropriate having regard to the view of the State Heritage Places from the South Esplanade. The proposed building is too high and too dominant. Its high and narrow vertical form is out of scale with the State Heritage Places either side of it. It would detract from the appearance of the State Heritage Places and substantially diminish the heritage character of a significant portion of the locality.
21	We also consider that, to a lesser extent, the scale, proportions and form of the building would detract from the heritage character of St Johns Row.

Density

22	Council Wide Objective 3(h) seeks "attractive higher density residential development particularly in the Glenelg centre".
23	Council Wide Objective 31 seeks:

Higher density residential development at Glenelg and Brighton activity centres, and landmark buildings at key intersections and gateways, that are attractively designed and give legibility and identity to the locality, as illustrated on the City-wide Structure Plan Map HoB/1 (Overlay 1) Part A, Figure HoB/3: Glenelg Activity Centre Structure Plan, Figure HoB/5: Brighton Activity Centre Structure Plan and Figure HoB/6: Seacliff Gateway Structure Plan.

24	Council Wide Principle 70 says that the total site coverage for any residential building should not exceed 60%. Estimates of the site coverage of the proposed development range from 70.5% to 71%.
25	We acknowledge that the site is within an area in which higher residential densities are sought. However, even so, the site coverage, combined with the lack of set back from St Johns Row, and the height of the building, make the proposal an overdevelopment of the site.

Amenity

26	Zone Objective 8 seeks "Protection of the amenity of land in the vicinity of development."
27	We heard detailed evidence from Mr Battye of his concerns about the effect the proposed development would have upon his enjoyment of his apartment in Albert Hall. His apartment includes an outdoor area at first storey level which is accessible from the former ballroom of Albert Hall, which has been restored and is now used as a living room.
28	Should the proposed development proceed, the outlook from the ballroom and the outdoor living area adjacent to it would be adversely affected. Given the provisions of the Development Plan quoted above, it may be that Mr Battye would have to tolerate a degree of diminution of amenity arising from a development which complied with the Development Plan. However, we are concerned particularly about overshadowing in the context of the proposed development under consideration.
29	Council Wide Principle 60 provides:

60 In the development of a dwelling, each habitable room and the principal living area of private open space associated with that dwelling, and any adjacent dwelling, should have access to a minimum of two hours of sunlight each day (between 9 am and 3 pm on June 21).

30	We note that Principle 60 sets a minimum standard. It is clear that some windows on the northern side of Albert Hall would not receive the requisite two hours of sunlight should the development proceed. The amenity of Albert Hall would be affected by overshadowing to an unacceptable degree.
31	We find that the proposed development is not in sufficient compliance with Zone Objective 8.

Summary and Conclusion

32

We recognise that the Development Plan, in Objective 3, seeks a balance between, among other things, the protection and enhancement of heritage on one hand and development on the other. We also recognise that the Development Plan identifies the site as having 5 storey development potential. We note that Objective 34 seeks:

Realisation of the maximum development potential of individual sites consistent with the other objectives, and the objectives for the applicable zones.

33	Achievement of the maximum potential height is subject to sufficient compliance with other objectives. The proposal is not in sufficient compliance with Council Wide Principle 123 and Zone Principle 15(d).
34	We recognise that Stormont has a 10 storey apartment building on its northern side. We note that that building has a considerable curtilage. We do not consider that the existence of that building, or other 20th Century buildings of various heights within the locality, have destroyed the heritage character in the vicinity of the site, though certain of them have diminished it. This does not justify further diminution.
35	The proposed development complies with some of the relevant provisions of the Development Plan. It is unobjectionable with respect to traffic and parking. It achieves higher residential density in the Glenelg Activity Centre. However, because of its height, form, scale and proportions it contravenes the heritage provisions of the Development Plan in relation to the character of the South Esplanade in the locality. Those factors, together with the lack of set back from St Johns Row would cause a detrimental effect on the character of St Johns Row. The proposed development would also unacceptably overshadow Albert Hall. The proposed development would be an over development of the site.
36	The decision of the Council is confirmed. The appeal is refused.