Moritz v City of Prospect & Perazzoli [2006] SAERDC 69 (11 October 2006)

Last Updated: 16 October 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MORITZ v CITY OF PROSPECT & PERAZZOLI

[2006] SAERDC 69

Judgment of Commissioner Green (ex tempore)

11 October 2006

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 – third party appeal – conditional provisional development plan consent of the Council to a fence structure – Residential Zone and Policy Area 1 – "complying" fencing to 2 metres; locality amenity and character and localised subject land and adjoining land characteristics considered – additional height of fencing structure of semi-permeable colorbond slats – impact on visual amenity and character of adjoining land and locality and overshadowing impacts considered – impact on values has no Development Plan basis – proposal sufficiently compliant with Development Plan – appeal dismissed except conditions of consent varied – conditional provisional development plan consent granted.
Development Act 1993, referred to.
Skewes v City of Charles Sturt & Ors [2004] SAERDC 43; Charleston Development Association Inc & Crookes v Adelaide Hills Council & Nepenthe [2000] SAERDC 25, considered.

MORITZ v CITY OF PROSPECT & PERAZZOLI
[2006] SAERDC 69

THE COURT DELIVERED THE FOLLOWING JUDGMENT EX TEMPORE:

1	This matter is in the nature of a third party appeal against the decision of the Council to conditionally consent to the development application of the second respondent for a fence structure at 10 Salisbury Terrace, Collinswood. The appellants own and reside at the adjoining property of 12 Salisbury Terrace, Collinswood. It contains a two-storey dwelling with ground level dining room and first level bedroom windows and rear first level balcony facing either west or north to parts of No. 10.
2	The written and oral evidence of Ms Thackray, a qualified town planner employed by the Council was noted. The letters of valuers (not called) do not assist the court in its role given the Development Plan criteria. The personal views and other evidence of Mr Moritz, a qualified civil engineer with surveying qualifications and Mr Perazzoli are also noted.
3	In summary, the proposal as amended, is for the part replacement of a fence but it is only "development" as defined in the Development Act 1993 requiring consent and development approval and assessed on its merits, for that part greater than 2.0 metres (complying development), that is, mostly the Colorbond slats that are 55mm in width 20mm spacings for a height of approximately 0.45 metres (and approximate overall height of 2.45 metres) and for a length of 46.31 metres.
4	The proposal is intended to marginally improve the privacy of the occupiers of No. 10 from potential over viewing from No. 12. I consider that it is not part of a dwelling nor an outbuilding.
5	The approach of the Court in this matter is the conventional one with respect to the assessment and weighting of relevant matters. The locality definition and description of Ms Thackray are accepted.
6	In terms of the locality, there is a variety of side and rear fences. A few, including a number of tennis court fences, hedges and fences with lattice may be over 2 metres perhaps up to 2.7 metres or so (excepting the tennis court fences which are higher), though most fences are likely to be in the order of 1.5 to 2.0 metres range.
7	The features of the subject land, that is 10 Salisbury Terrace and the adjoining land at 12 Salisbury Terrace are noted including the gardens, both deciduous and evergreen trees, fencing, boundary outbuildings and dwelling windows as well as the rear swimming pool of No. 10 (under construction) and the rear tennis court of No. 12, as well as the photos taken by Ms Thackray set out in Exhibit R2.
8	The relevant Development Plan is the Prospect (City) 18 November 2004 version and the provisions outlined by Ms Thackray are also noted. They are the relevant guidelines and have been referred to also by both counsel, the parties and Ms Thackray.
9	The opinion and views of Ms Thackray have not been refuted or seriously challenged. I agree with her assessment and conclusions in terms of visual amenity, character and overshadowing impacts. They will be relatively minor and localised. I have also considered the other concerns of the appellant including loss of views, reduction of casual surveillance to the sides and reduction of human interaction. I assess that the proposal sufficiently meets the Development Plan guidelines and warrants Provisional Development Plan Consent. The authorities put by counsel on a couple of points are also noted.
10	The appeal is dismissed. The Council decision is confirmed except that condition 1 is varied to reference the amended plan at p 4 of Exhibit R1 and the Colorbond slats specified to be 55mm in width with 20mm spacings.
11	In addition, in condition 2 the final 11 words are deleted, that is ‘and any new fencing shall be erected as quickly as practicable’. That is not a valid element.
12	To avoid confusion a further condition numbered 3 is also attached as follows: ‘The combined height of the proposed slatted lattice above the proposed fence shall be no more than 2.45 metres measured from the existing ground level on the adjoining property at 12 Salisbury Terrace. It may be tapered or stepped to achieve that outcome. The colour of the lattice Colorbond on the eastern side shall be "bronze olive".
13	There will be an order to that effect and I thank the parties for their assistance, submissions and their evidence.