Planbuild v City of Norwood Payneham & St Peters [2006] SAERDC 79 (16 November 2006)

Last Updated: 20 November 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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PLANBUILD v CITY OF NORWOOD PAYNEHAM & ST PETERS

[2006] SAERDC 79

Judgment of Commissioner Green

16 November 2006

LOCAL GOVERNMENT - TOWN PLANNING

Development Act 1993 - applicant appeal - refusal by the Council - proposed land division of one allotment into two allotments on corner site with historic corner shop building - Historic (Conservation) Zone - Residential and Kensington 1 Policy Area - locality definition and characteristics important - allotment sizes (and depth), conceptual future dwelling design and siting, timing of land division prior to built form being substantially completed, car parking and access for retained shop floor area and impacts on character of locality and pattern of development in the immediate locality, all considered - proposal not meeting certain guidelines and insufficiently complying with the Development Plan as a whole - appeal dismissed - decision of the Council upheld.
Development Act 1993; Development Regulations 1993, referred to.
Villaplex Pty Ltd v City of Norwood Payneham & St Peters [2002] SAERDC 10, considered.

PLANBUILD v CITY OF NORWOOD PAYNEHAM & ST PETERS
[2006] SAERDC 79

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This is an applicant appeal against the decision of the City of Norwood Payneham & St Peters (the Council) to refuse Development Application No. 155/D063/2005, made under the Development Act 1993, seeking Provisional Development Plan Consent and Land Division Consent for a land division (and implicit demolition of part of a building) of land at Kensington. The reasons for the refusal of the Council were:

1. The Application is at odds with City Wide PDC 90(e) in that only one carparking space for the existing shops is provided.
2. The Application is at odds with City Wide PDC 18(j) and Zone PDC 11 which requires allotment sizes of no less than 400 square metres.
3. The Application is at odds with City Wide Objective 1 in that it is not an orderly form of development.
4. The Application is at odds with Historic (Conservation) Zone – Residential Objective 1 as the proposal seeks to create small lots which are inconsistent with enhancing the historical and residential character of Kensington 1 Policy Area.

2	A summary of some of the relevant details in this matter is as follows:

Registration date of application (Development Assessment Commission):	20 September 2005
Subject land address:	47A and 47B High Street (corner of Thornton Street), Kensington – allotment 3 DP 19194, CT Vol.5627 Fol.851
Existing use:	Shops (two tenancies) and rear parking for 3 vehicles
Proposal:	Torrens Title land division (one allotment into two) and demolition of lean-to addition
Relevant authority:	City of Norwood Payneham & St Peters
Relevant/Appropriate Development Plan:	Norwood, Payneham and St Peters (City) consolidated version 16 October 2003
Relevant Zone/Area:	Historic (Conservation) Zone – Residential (HCZR hereafter) /Kensington 1 (K1PA hereafter)
Categorisation/Representations:	1/nil
Referrals to Agencies   (Schedule 8 Regulations):	Not required
Date of decision:	15 May 2006
Appeal lodged:	13 July 2006
Conference concluded:	21 August 2006

3

The Court viewed the subject land and the locality on the morning of Monday, 30 October 2006 in the presence of the parties. Witnesses providing evidence to assist the Court and to which regard is given comprised, for the appellant, Mr P Hignett (director of appellant company, a qualified architect and town planner, and builder – refer Exhibit A2), regarding background and relevant context; and Mr A Wilkinson (qualified consultant town planner and architect – refer Exhibit A1), primarily on heritage aspects and secondarily on town planning issues. In the respondent’s case, Mr G Maiorano (a qualified consultant town planner – refer Exhibit R2) and Ms T Willis (a qualified consultant architect and heritage advisor – refer Exhibit R3) gave evidence concerning town planning and heritage related matters. I also have noted the report and recommendations of Council’s professional town planning staff in Exhibit R1, pp21-26.

The Subject Land

4

The subject land is almost rectangular in shape, orientated in a north-east/south-westerly direction, with a narrow frontage of 8.87 metres to High Street and frontage of 32.0 metres to Thornton Street, providing a site area in the order of 278 square metres.

5

It contains a building that is some 4.2 metres high, containing two shops, with shop fronts orientated and built to High Street (and built to Thornton Street) alignments, with origin said to date from the 1890s and with a verandah over the footpath of the former. It has a rear, newer lean-to addition. The original building has, by my calculations, a total floor area of approximately 93 square metres and lean-to area of approximately 61 square metres (154 square metres in total).

The Proposal

6	The development proposal is for land division of one allotment into two (refer Exhibit R1, p7 – copy attached), and implicit in the proposal line of division selected is the demolition of the newer lean-to section of the building. If consents were forthcoming, conditions would need to be attached to ensure the timing of the demolition, prior to the issue of Development Authorisation and new Certificates of Title, so that building compliance issues were not created. Proposed allotment 50 would be a vacant allotment intended for residential use with a frontage to Thornton Street of 18 metres and depth of 8.67 metres, as existing, and site area of approximately 156 square metres. Proposed allotment 51, the corner allotment, would contain the existing old shop building with frontage to Thornton Street of approximately 14 metres (thereby allowing for approximately 3 metres clear, northward of the existing building to remain, for a single car space to be provided with a new access crossover to Thornton Street) and with a site area of approximately 122 square metres.
7	The development application and proposal in question is not for the restoration or upgrading of the existing building, nor for the approval, whether in-principle or otherwise, of any future dwelling or its design and layout on proposed allotment 50. The former is for separate application (with some other approvals now in place) as is the latter, though in the proper assessment of the land division proposal it is appropriate to consider, conceptually, whether a dwelling could be sited and designed to generally and sufficiently accord with the Development Plan, particularly the heritage preservation thrust of the HCZR and K1PA guidelines.
8	Mr Wilkinson commenced his assessment and formulation of his opinion from an incorrect starting point (Exhibit A1, clause 3.1), probably as a result of the confusion in this regard exhibited by Mr Hignett. Ms Willis and Mr Maiorano were also partly misguided in considering restoration to the existing building as part of this application.

The Locality

9	Comprising that part of the area surrounding the subject land of tangible influence on it and that the specific proposal impacts upon, to a notable degree, the locality boundary in this matter is to be based primarily on direct impacts of the division (such as a new internal dividing fence and a new crossover) and pattern of land division affecting character perception. I have had regard to that put forward by Mr Wilkinson and Mr Maiorano (adopted also by Ms Willis). The former is poorly conceived focussing almost entirely on Thornton Street north of High Street. The latter is reasonable and is generally accepted, except that I assess that it should extend further to their next corners (and built form around them) to the south-east to Bridge Street and to the north-west to Phillip Street.
10	The locality has been thoroughly analysed, described and photographed by Mr Wilkinson, Mr Maiorano and Ms Willis. I do not agree with Mr Wilkinson that "the majority of the locality was generally made up of home units ..." (Exhibit A1, clause 5.6), certainly not as defined by Mr Maiorano and Ms Willis and now adopted by the Court. Fig NPSP/1 sets out "non-conforming" items and it obviously included the school/convent and grounds opposite generally to the south-west; the warehouse/commercial building on the opposite corner to the east; five groups of home units/town houses (several extending down the allotment away from the road) and two detached dwellings to the north-east along Thornton Street. However, this leaves approximately 34 contributory items (as designated) and a State Heritage item building complex (to the south-east, corner of High Street and Bridge Street). The built form character is largely and predominantly derived from built form with historic character, mostly of single storey form, particularly in the immediate locality.
11	Of more importance in the assessment of this development proposal, is the land division pattern and characteristics in the locality and perceptions of them. The Allotment Sizes and Allotment Frontages plans attached to the Statement of Mr Maiorano are instructive. Whilst the recti-linear grid, angled north-east of north remains dominant, allotments are considerably varied in terms of site areas (200-400 square metres or more but with some, generally units or four corner sites of less than 200 square metres), with varied frontages (5-10 metres generally but up to 18 metres or more) and depths – excluding corner sites (approximately 30-65 metres), with corner sites having shallow depth away from the secondary road frontages in the order of 6-10 metres.
12	In some cases single building forms have cadastral divisions and separate allotments but these are generally not obvious to the casual view and the built form is the dominant element rather than any such division.
13	Overall, the locality is one of varied residential amenity, with mixed character but with an historic flavour remaining in most parts.

Development Plan Provisions

14	I have noted the provisions referred to by all witnesses and counsel, and I find the following to be the provisions in the appropriate/relevant Development Plan of most assistance to the assessment of the proposal, including the key issues in dispute:

CITY WIDE (CW hereafter)
Objectives: 4, 9, 13, 14, 19, 21, 22, 23, 32, 83 and 85; and
Principles of Development Control: 4, 6, 7, 10,18(e)(j), 19(h)(k), 25, 30, 32, 39, 43, 44, 49, 53, 57, 58, 77, 78, 79, 81, 82, 90(a)(e), 157 and 169.

HISTORIC (CONSERVATION) ZONE – RESIDENTIAL
Objectives: 1 and 2 (and para 4); and
Kensington 1 Policy Area: paras 1 and 2; and
Principles of Development Control: 1, 2, 3, 4, 6, 7 and 11.

Approach

15

Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate-relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan is to be assessed and it is the relevant guidelines in that Plan (listed above) that provide the firm basis for decision-making.

16

In terms of s 35 and the provisions of the relevant Development Plan, particularly for the HCRZ, the proposal is neither a complying nor a non-complying development having regard to the relevant principles. It is therefore for consideration on its merits against the Development Plan guidelines, weighing up the pro’s and con’s and considering whether the proposal is conducive to the distilled overall intent, purpose and desired character and amenity of the relevant Zone and in the specific locality context. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. It is also not appropriate to compare the proposal with, or test it against, other alternatives with a better or a so-called ideal design solution or planning outcome. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consents. Having said that, minor amendments can still be sought and included in a decision.

Planning Assessment

17

The key issues for assessment of the land division revolve around allotment area (and to a lesser extent depth for the proposed new vacant allotment 50), adequacy of that allotment for the future appropriate design and siting of a dwelling (having regard to Development Plan criteria, particularly for the Zone and Policy Area), timing of applications and approvals for small size allotment divisions in advance of built form existing or being substantially completed, for the corner allotment 51 with shop buildings retained, adequacy of car parking relative to retained floor area and new access to Thornton Street, and finally for both allotments, impacts on perceptions of character in the light of that envisaged and intended by the Development Plan for the HCZR and K1PA.

Allotment Sizes

18	Key Development Plan criteria are as follows:

HCZR Principle of Development Control

11 The average site area per dwelling unit for residential development in the Historic (Conservation) Zone-Residential should not be less than 200 square metres in the Kent Town 1 and 2 Policy Areas and the Norwood 1 and 2 Policy Areas; 250 square metres in the Norwood 3 and 5 Policy Areas; 300 square metres in the Norwood 4 Policy Area; and 400 square metres in the Kensington 1, Kensington 2, Kensington 3 Policy Areas except as provided herein.
Where the site of the development is shown on Fig HC(R)/1 as a "Non-conforming Item" or the development consists of a new dwelling or dwelling [sic] are to be located on a portion of the site which is not occupied by a "Contributory Item" shown on Fig HC(R)/1, the average site area per dwelling may be less than 400 square metres (but not less than 200 square metres) provided that the development will not be inconsistent with the predominant pattern of development on allotments in the immediate locality of the subject site.

CW Land Division – Principles of Development Control
.....

18 Land should not be divided:
...
(e) if the size, shape, location, slope or nature of the land contained in each allotment resulting from the division renders any of the allotments unsuitable for the purpose for which they are to be used;
...
(j) if, in the Kensington and Norwood Area shown on Map NPSP/1 (Overlay 1), any allotment is less than 400 square metres in area (or less than 600 square metres in area in the Marryatville/Heathpool Policy Area of the Residential Zone) unless the land division is consistent with the safe and convenient occupation of existing or substantially completed structures.
19 When land is divided:
...
(k) the new layout should complement the appearance and function of the prevailing street pattern; and
.....
(my underlining)

19

Each of the proposed allotments have very significant departures from the general site area guide of 400 square metres. An existing or proposed dwelling on allotment 50 is not substantially completed which may justify a lesser area. In addition, the allotment areas are significantly less than an exception of 200 square metres average site area per dwelling provided in HCZR PDC 11 applicable to any future dwelling application on the balance of the site of a contributory item. In the light of the Development Plan and having regard to the Torrens Title allotment areas in the locality and the immediate locality, there is no basis of support for the proposed allotment area. Instead of a total of 400 square metres, the site area of the subject land (already very small for the locality) is only 278 square metres, that is 30% less than the area required to achieve two dwellings or two allotments under best case scenarios. In addition, allotment 50 of some 156 square metres is well short of the 200 square metres guide.

20

The depth of proposed allotment 50 is, for a residential allotment, uncharacteristically shallow and it would make very difficult, though not impossible, both the functional design of a small dwelling, perhaps with only 1 bedroom, including the provision of private open space, service areas, off-street parking, and of a design appropriate to the residential amenity and historic character of the immediate locality.

Conceptual Future Dwelling Design and Siting (Allotment 50)

21

The front and side boundary setbacks for new buildings are encouraged by the Plan guidelines to be similar to the predominant pattern of historic buildings in the immediate locality, at the same time as maintaining the prominence of existing historic buildings, in this case, the corner shop building when viewed from Thornton Street to the north, looking in a south-westerly direction (vide HCZR PDC 6). Whilst dwellings of up to two storey are a possibility (HCZR PDC 10), the practicality of achieving that may also be difficult given limited or no setbacks and potential amenity impacts to adjoining residential properties and in an immediate locality context, with an absence of two storey buildings. Ground level private open space of 40 square metres per dwelling is sought by CW PDC 58 and two car parking spaces per dwelling, irrespective of the number of bedrooms, is sought by CW PDC 90(a).

22

As agreed or conceded by the experts it may be possible (though very difficult) to devise an appropriately designed dwelling on proposed allotment 50, to both complement and respect the retained shop building and sufficiently meet the other functional, amenity and character based guidelines in the Plan. It is not for the Court to critique the dwelling concepts put forward in any detail – they are for later individual development application to the Council and for its decision making, however the Court needs to be satisfied that it is a reasonable possibility. Though marginal, the land division and size of allotment 50 does not, on my assessment, fail on this basis and CW PDC 18(e) may be sufficiently met.

Timing

23

An unusual guideline in the relevant Plan is the exception to a 400 square metre allotment area for land division proposals, provided by the last few lines of CW PDC 18(j) quoted above. All witnesses, including Mr Wilkinson, acknowledged the rationale for it in a historic setting where built form generally has a more important and visible contribution to character than, necessarily and usually, land division pattern, such as division of whole buildings into several allotments and titles. I agree. Mr Wilkinson also agreed that a division in advance of an infill dwelling design could be counter-productive to achieving an acceptable built form outcome given, potentially two ownerships and potentially, issues arising with regard to building code requirements.

24

On the basis of this guide, it would seem more appropriate for the appellant to lodge an application and seek development approval of the Council for an additional dwelling at the rear of the shop building and to substantially complete such a building, before seeking a land division approval and the placement of the separate building on a separate title. In that way, an acceptable built form outcome is achieved and risks of the alternative avoided. Whether or not approval is forthcoming for a dwelling on the area available and any particular design, is problematic and for the Council to determine on the basis of a specific proposal and application.

Floor Space/Car Parking for Shops Building (Allotment 51)

25

CW PDC 90(e) and 82, provide guidance in these circumstances. The current situation is the availability of three car spaces on site for some 150 square metres gross leasable area (a rate of two spaces/100 square metres), a shortfall when compared to the guide of five spaces/100 square metres of gross leasable area. The proposed floor area remaining on allotment 51 of some 93 square metres is to be provided with one car space – a rate less than currently provided and coupled with the likely removal of an on-street space for the new access crossover, it may potentially exacerbate current conditions for parking in the locality. The actual car space numbers are, however, marginal.

26

If, as mooted by Mr Hignett for the appellant, a minor amendment were to be made to the new dividing boundary between each allotment, to shift it say 2.7-3.0 metres northward, an additional car space would be achievable for allotment 51 and the shop floor area, essentially maintaining the car parking shortfall status quo, though two vehicles reversing close to the corner is not ideal from a safety perspective. Such minor amendment could be countenanced by the Court, if the proposal was in all other respects satisfactory and was to be granted consent. However, a negative to be weighed up would be whether the remaining reduced area for proposed allotment 50 (perhaps then only 135 square metres) was adequate for the design and siting of an acceptable dwelling having regard to the Development Plan guidelines and the historic locality context. Such a proposition becomes even more problematic.

Impacts on Character Perceptions

27	With respect to the corner proposed allotment 51, the division, either as proposed or if amended by a minor boundary relocation northward, would cause little change to the perceived character of development in the locality, or to the corner or the streetscapes, except possibly with respect to fencing, new vehicle parking and crossover arrangements and their visibility, to the secondary road frontage of Thornton Street.
28	However, with respect to proposed vacant allotment 50 for future residential use, the division, with some account taken of even an appropriately designed built form, would have an impact on perceived character – that is of an infill dwelling with separate internal fencing and driveways to Thornton Street. The width/frontage of the site (meeting HCZR PDC 3), diminishes the degree of impact as that element is in the range of many in the immediate locality. However, the shallow depth could become a shortcoming and a constraint and consequentially impacting on character, but dependent on the design outcome of a future dwelling proposal for it.
29	Certainly, street patterns are not changed, a significant corner building is conserved and its prominence could be maintained as sought by K1PA. However, it is considered difficult and problematic, though not impossible, to achieve the test set down in the latter part of HCZR PDC 11, with respect to a new development not being inconsistent with the predominant pattern of development on allotments in the immediate locality (utilizing the meaning of those words and phrases as set out in Villaplex Pty Ltd v City of Norwood Payneham & St Peters [2002] SAERDC 10 at paras 25, 27 and 29). There are no other allotments or very small dwellings on similar very small allotments in the immediate locality.

Conclusions

30	The motive of the proponent with the land division proposal, particularly to secure finance or other private economic considerations, whilst commendable when the project is considered as a whole, and perhaps worthy of some flexibility towards numerical guidelines, is nevertheless of no real or significant relevance to a proper planning assessment.
31	The proposed allotment sizes are significantly under the guidelines even on the most liberal of approaches. In addition, CW PDC 18(j) is very clear with respect to staging sequence for small allotment land divisions and with a worthwhile planning rationale. Whilst it may be possible to design, on such a small, shallow, sensitive site, a very small dwelling, the risk and advisability of approving a land division creating, in advance, such a small parcel, are significant and such an allotment boundary and potentially two ownerships, could well be counter productive to achieving an acceptable built form outcome. In isolation of built form, the new vacant allotment would be a departure from the pattern of allotments in the locality, potentially negatively affecting character. Whilst car parking adequacy for the retained shops/building represents, on the current proposal, a shortfall, a minor boundary adjustment northward could facilitate a second car space which would maintain a neutral position with car parking provision and the guidelines. However, one on-street car space would also be lost. This consideration is marginal, but not fatal to the proposal.
32	I also note in conclusion that the evidence of Mr Wilkinson was poor, particularly his initial opinion, to his role, his locality definition and his approach, analysis and assessment of this land division proposal. Conversely, I generally agree with the evidence and opinion of Mr Maiorano.
33	Having carefully considered the development proposal, the evidence, what was seen on the view, the relevant Development Plan guidelines and all relevant matters, I consider that the proposal does not sufficiently meet the Development Plan and is thus not worthy of the consents sought.
34	I also confirm for the appellant’s benefit, that it is not appropriate or acceptable to flag a change to the proposal mid-stream, to make it a Community Title division with some common property, nor, as requested and thought appropriate by Mr Wilkinson, for the Court, if it was mindful to consent to the proposal, to indicate a set of parameters for future dwelling design on allotment 50, via conditions of Provisional Development Plan Consent. They would not be valid conditions for the land division application, as correctly submitted by counsel for the Council.

Decision

35	The appeal is dismissed and the decision of the Council upheld. There will be an order to that effect.

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