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BARCLAY v CITY OF HOLDFAST BAY [2007] SAERDC 1 (5 January 2007)

Last Updated: 9 January 2007

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.

BARCLAY v CITY OF HOLDFAST BAY

[2007] SAERDC 1

Judgment of Commissioner Mosel

5 January 2007

LOCAL GOVERNMENT - TOWN PLANNING

Development application for a shed - Residential A Zone - consent refused by the Council - visual impact occassioned by its position the principal issue - adjacent a well maintained and well designed retirement village - the contribution the appearance and quality of the retirement village makes to the character and amenity of the land in the near vicinity of the subject land is a factor for consideration - meaning of Zone Principle 13 considered - appearance, materials and location of proposal stands in stark contrast with the character of land immediately to the north - proposed building not of a high quality - appeal dismissed.
Development Act 1993, referred to.

BARCLAY v CITY OF HOLDFAST BAY
[2007] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This appeal concerns a proposed development on the land situated at 14 Cudmore Street, Somerton Park ("the subject land"). The subject land is on the northern side of Cudmore Street just west of Scarborough Street. It is a large allotment (15.24 metres x 60.96 metres) upon which sits a dwelling, outbuildings and swimming pool.
2 By development application dated 8 December 2005 Mr & Mrs Barclay applied to the City of Holdfast Bay ("the Council") for consent to construct a building characterised by them as a "shed" at the rear of their land. The Council described the proposed development in the following terms:

Open workshop to rear boundary, attached verandah to rear of dwelling and pergola to side of dwelling on side boundary

3 The nature of the proposal determined by the Council is due in part to the plans attached to the application. They include details for the construction of two pergolas. Mr Barclay’s evidence is to the effect that the proposed development was never intended to include the pergolas’. Reference to the term "workshop", for the reasons below, do not infer a commercial or business use intended for the shed.
4 Thus the matter before the Court relates to the shed as variously depicted on pp 5-9 of Exhibit R1. During the proceedings Mr Barclay amended the proposed development by:

(a) including along the full length of the shed flashing between the gutter line to the fence line; and

(b) undertaking to connect the downpipes from the shed to the existing sump.

5 The proposed development has, in fact, been constructed. The application for consent is thus retrospective. It is established law that such circumstances can neither benefit nor disadvantage any party in the proceedings.
6 The plans appended to this decision illustrate the essential features of the proposed development.
7 The proposed shed is located 350mm from the rear (northern boundary) and in line with the western boundary. The roof of the shed is to be constructed in a manner that permits an existing tree to protrude through it. This aspect of the proposal and the fact that it has no cladding along its northern "wall" alignment makes it an unusual structure. In effect, the existing fence along the northern boundary is the outer "wall" of the building.
8 The land immediately adjacent the northern boundary is occupied by several dwellings for retirees. Some of the dwellings are secured in a "gated complex" fashion and all are accessed from Gordon Street. Those nearest the common boundary with the subject land are setback about 4 metres from that boundary. For convenience this development will be referred to as the "retirement village".
9 Within the retirement village adjacent the proposed shed is a service area for the dwellings and a partly enclosed and covered outdoor entertaining facility. The amenity within the retirement village is high. By my observation, maintenance of the dwellings, their curtilages, common areas and the service area is meticulous.
10 The proposed shed has been a factor that had led to some difficulties between the Appellants and residents within the retirement village. Concerns about noise emanating from the shed and questions about its use associated with a business were raised by some of its residents in their representations to the Council during the public notification period. Observations made by me on the view confirmed the evidence of Mr Barclay that hobby pursuits and household storage is the principal purpose of the shed. That is not to say that such activities can never by the source of nuisance and irritation to neighbours.
11 The subject land is situated in the Residential A Zone in the Development Plan for the City of Holdfast Bay (25 September 2003). It is depicted on Map HoB/7.
12 The planning issue in these proceedings is simply this: is the proposed shed sited and designed appropriately having regard to the provisions for the Residential A Zone and the general provisions that urge compatibility between new and existing development having particular regard to its immediate circumstances?
13 When assessing the proposal against the Plan as a whole, the most relevant provisions that apply are as follows:

Residential A Zone

13 To ensure a reasonable separation between dwellings, to minimise the potential for overshadowing of adjacent dwellings, and to create attractive streetscapes, dwellings, ancillary buildings, garages and carports should be set-back not less than the following minimum distances from site boundaries and as illustrated in Table HoB/3, Figure 2:

...

17 Development should generally accord with the design and appearance prevailing in the locality as described in the introduction to the Residential A Zone and particularly as it relates to dwelling siting, set-backs, massing and roof pitch.
Environmental (Appearance of land, buildings and building set-backs)

Objective 83: Design of quality in respect of the appearance of development so that:

(a) the amenity of localities is not impaired by the appearance of land, buildings and objects; and
...
Objective 84: Land and buildings maintained free of vermin, weeds and unwarranted accumulation of materials.

189 Each building should be located and designed in respect of its:
(a) height;
(b) size;
(c) scale;
(d) colour;
(e) form;
(f) siting;
(g) architectural style; and

(h) materials of construction, in a manner consistent with the desired character described by the objectives or principles of development control for the zone in which it is situated, or otherwise, the predominant character of other buildings in the locality or its utilization.

...

191 The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated.

14 The narrative following Objectives 83 and 84 above is also relevant. It says, inter alia, the following:

The city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. If the city dweller is to enjoy looking at his surroundings, attention must be given to the aesthetic qualities of both natural and man-made features. The design of individual buildings should be of high standard and related to adjacent buildings.

15 Ms Riggs who is a qualified and experienced planner gave evidence in the case of the Council. Her written statement was received by the Court as Exhibit R2. The errors contained in Ms Riggs statement do not appear to alter the central thrust of her conclusions’ which are summarised on pp 11-12 of Exhibit R2:

• the proposal does not achieve an appropriate rear setback to ensure the protection of the amenity of adjoining properties;
• the proposed roof pitch for the shelter/workshop component of the application is considered to be out of character with the roof pitches present within the locality;
• as a result of the proposed roof pitch, the height of the proposed structure is considered to be inappropriate on the site, in particular the relationship of the rear boundary of the subject land relative to the covered open space area located on the retirement village site to the rear;
• the appearance of the proposal will have a detrimental impact on the amenity of adjoining dwellings, particularly the communal open space of the retirement village located on Gordon Street, adjacent the rear boundary of the subject land; and
• it is my opinion that the proposed ‘workshop’ component of the proposed shelter/workshop will cause detrimental impact to the amenity of the locality as a result of noise due to the side adjacent the rear boundary of the subject land being enclosed only by way of the existing fence.

16 Ms Riggs referred in the main to Objectives 83 and 84 and Principles 17 (Zone), 189 and 191 when reaching the above conclusions. She took into account, quite appropriately, the intended siting and appearance of the proposal, the setback distances that generally apply to buildings in the near vicinity and the amenity and use of the common area in the retirement village. They are all valid considerations and I have taken Ms Riggs views into account.
17 Also I have considered at some length the evidence of Mr Barclay (Transcript pp 4-17). I have made particular note of his view in respect of the following aspects:
• the similarity to the existing height of the shed and its roof pitch when compared with adjoining development;
• the intention to connect the shed to the existing stormwater disposal system; and
• the table compiled in Exhibit R1 (pp 39-42) which indicates the extent to which its author contends the proposal complies with the provisions of the relevant Development Plan.

18 I note also Mr Barclays preparedness to construct a masonry wall along the northern boundary of the subject land.
19 Whether the proposed shed is appropriately located with respect to the northern boundary of the subject land is the central issue. The evidence of Ms Riggs calls into question the relevance of Principle 13 which, on the face of it, establishes desired setback distances between buildings and boundaries. In this case, a 1 metre setback is the applicable distance.
20 It is a curiously worded provision and there are some difficulties in determining its intent and proper application when reference is made to Table HoB/3 Figure 2. I agree with Ms Riggs that the central issue has nothing to do with overshadowing or streetscape impacts. However, one purpose of the provision is to "ensure a reasonable separation between dwellings". In planning terms the way in which the desired character of a zone, area or locality is formed by the spaces between built forms in the landscape is generally not restricted by its consideration of the placement of dwellings alone. I consider that all building forms are a factor for consideration. It follows that when assessing the development against Principle 13 the separation distance between a building and the rear boundary is a factor that is relevant whether or not matters of streetscape quality or overshadowing are at issue.
21 On my observation, the buildings within the development immediately to the north of the proposed shed have been sited in substantial compliance with desired character for the Zone. In other words, the design of the retirement village has played its part in forming an appropriate relationship with its neighbours and has, on and near the common boundary with the subject land, established a particular quality of construction and siting that appear to me to be in accord with the features of the desired character for the Zone that are provided for in Principles 13 and 17 in particular. The high level of visual amenity occasioned by these features are relevant when assessing the proposal.
22 The way in which the shed is sited, its overall appearance and materials of construction and its connection to the rear fence stands in stark contrast with the character of the retirement village. The shed is 7.8 metres long, 3.9 metres high at its ridge and the supporting framework is 350mm from the northern boundary. However, being an open sided structure along its northern alignment, the use of the shed is capable of spilling beyond the line of its steel supports to the fence line to the extent that the fence defines its northern "wall". For this and other reasons Mr Barclay proposes flashing which bridges the gap between the gutter and the fence. This feature of the proposal together with the way in which the polycarb roof cladding is to be fashioned around the existing tree results in a building that is in conflict with Zone Principles 13 and 17 and Environmental Principles 189 and 191. In all, the proposed shed is designed and is to be constructed and sited in a manner that has no regard to the circumstances beyond the boundaries of the subject land. The design and appearance of the proposed building is not of the quality nor will it form the relationship with adjacent buildings sought in the statement clarifying the intent of Objectives 83 and 84. It is necessary in the circumstances to position the shed clear of the boundary in a manner which conforms with Principle 13.
23 I have given consideration to Mr Barclay’s suggestion that a masonry wall might be placed along the northern boundary. A change of that nature, depending on its height and other aspects of its construction, may be the subject of further assessment by the Council. It is likely to be one which substantially changes the nature of the proposal and thus one which is unable to be contemplated for assessment in these proceedings.
24 The Appellants rear yard is quite large by current standards. Why it has been necessary to position the building as proposed is not immediately obvious. I acknowledge that some attention has been given to render the pitch of the roof compatible with those which feature in the vicinity of the subject land and that attempts have been made to overcome some of its functional shortcomings. They are redeeming aspects of the proposal but not sufficient to bring it into adequate conformity with the Development Plan when read as a whole.
25 The appeal is dismissed. The decision of the Council is confirmed.
26 There will be an order to that effect.

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1	This appeal concerns a proposed development on the land situated at 14 Cudmore Street, Somerton Park ("the subject land"). The subject land is on the northern side of Cudmore Street just west of Scarborough Street. It is a large allotment (15.24 metres x 60.96 metres) upon which sits a dwelling, outbuildings and swimming pool.
2	By development application dated 8 December 2005 Mr & Mrs Barclay applied to the City of Holdfast Bay ("the Council") for consent to construct a building characterised by them as a "shed" at the rear of their land. The Council described the proposed development in the following terms:

5	The proposed development has, in fact, been constructed. The application for consent is thus retrospective. It is established law that such circumstances can neither benefit nor disadvantage any party in the proceedings.
6	The plans appended to this decision illustrate the essential features of the proposed development.
7	The proposed shed is located 350mm from the rear (northern boundary) and in line with the western boundary. The roof of the shed is to be constructed in a manner that permits an existing tree to protrude through it. This aspect of the proposal and the fact that it has no cladding along its northern "wall" alignment makes it an unusual structure. In effect, the existing fence along the northern boundary is the outer "wall" of the building.
8	The land immediately adjacent the northern boundary is occupied by several dwellings for retirees. Some of the dwellings are secured in a "gated complex" fashion and all are accessed from Gordon Street. Those nearest the common boundary with the subject land are setback about 4 metres from that boundary. For convenience this development will be referred to as the "retirement village".
9	Within the retirement village adjacent the proposed shed is a service area for the dwellings and a partly enclosed and covered outdoor entertaining facility. The amenity within the retirement village is high. By my observation, maintenance of the dwellings, their curtilages, common areas and the service area is meticulous.
10	The proposed shed has been a factor that had led to some difficulties between the Appellants and residents within the retirement village. Concerns about noise emanating from the shed and questions about its use associated with a business were raised by some of its residents in their representations to the Council during the public notification period. Observations made by me on the view confirmed the evidence of Mr Barclay that hobby pursuits and household storage is the principal purpose of the shed. That is not to say that such activities can never by the source of nuisance and irritation to neighbours.
11	The subject land is situated in the Residential A Zone in the Development Plan for the City of Holdfast Bay (25 September 2003). It is depicted on Map HoB/7.
12	The planning issue in these proceedings is simply this: is the proposed shed sited and designed appropriately having regard to the provisions for the Residential A Zone and the general provisions that urge compatibility between new and existing development having particular regard to its immediate circumstances?
13	When assessing the proposal against the Plan as a whole, the most relevant provisions that apply are as follows:

16	Ms Riggs referred in the main to Objectives 83 and 84 and Principles 17 (Zone), 189 and 191 when reaching the above conclusions. She took into account, quite appropriately, the intended siting and appearance of the proposal, the setback distances that generally apply to buildings in the near vicinity and the amenity and use of the common area in the retirement village. They are all valid considerations and I have taken Ms Riggs views into account.
17	Also I have considered at some length the evidence of Mr Barclay (Transcript pp 4-17). I have made particular note of his view in respect of the following aspects:
•	the similarity to the existing height of the shed and its roof pitch when compared with adjoining development;
•	the intention to connect the shed to the existing stormwater disposal system; and
•	the table compiled in Exhibit R1 (pp 39-42) which indicates the extent to which its author contends the proposal complies with the provisions of the relevant Development Plan.

18	I note also Mr Barclays preparedness to construct a masonry wall along the northern boundary of the subject land.
19	Whether the proposed shed is appropriately located with respect to the northern boundary of the subject land is the central issue. The evidence of Ms Riggs calls into question the relevance of Principle 13 which, on the face of it, establishes desired setback distances between buildings and boundaries. In this case, a 1 metre setback is the applicable distance.
20	It is a curiously worded provision and there are some difficulties in determining its intent and proper application when reference is made to Table HoB/3 Figure 2. I agree with Ms Riggs that the central issue has nothing to do with overshadowing or streetscape impacts. However, one purpose of the provision is to "ensure a reasonable separation between dwellings". In planning terms the way in which the desired character of a zone, area or locality is formed by the spaces between built forms in the landscape is generally not restricted by its consideration of the placement of dwellings alone. I consider that all building forms are a factor for consideration. It follows that when assessing the development against Principle 13 the separation distance between a building and the rear boundary is a factor that is relevant whether or not matters of streetscape quality or overshadowing are at issue.
21	On my observation, the buildings within the development immediately to the north of the proposed shed have been sited in substantial compliance with desired character for the Zone. In other words, the design of the retirement village has played its part in forming an appropriate relationship with its neighbours and has, on and near the common boundary with the subject land, established a particular quality of construction and siting that appear to me to be in accord with the features of the desired character for the Zone that are provided for in Principles 13 and 17 in particular. The high level of visual amenity occasioned by these features are relevant when assessing the proposal.
22	The way in which the shed is sited, its overall appearance and materials of construction and its connection to the rear fence stands in stark contrast with the character of the retirement village. The shed is 7.8 metres long, 3.9 metres high at its ridge and the supporting framework is 350mm from the northern boundary. However, being an open sided structure along its northern alignment, the use of the shed is capable of spilling beyond the line of its steel supports to the fence line to the extent that the fence defines its northern "wall". For this and other reasons Mr Barclay proposes flashing which bridges the gap between the gutter and the fence. This feature of the proposal together with the way in which the polycarb roof cladding is to be fashioned around the existing tree results in a building that is in conflict with Zone Principles 13 and 17 and Environmental Principles 189 and 191. In all, the proposed shed is designed and is to be constructed and sited in a manner that has no regard to the circumstances beyond the boundaries of the subject land. The design and appearance of the proposed building is not of the quality nor will it form the relationship with adjacent buildings sought in the statement clarifying the intent of Objectives 83 and 84. It is necessary in the circumstances to position the shed clear of the boundary in a manner which conforms with Principle 13.
23	I have given consideration to Mr Barclay’s suggestion that a masonry wall might be placed along the northern boundary. A change of that nature, depending on its height and other aspects of its construction, may be the subject of further assessment by the Council. It is likely to be one which substantially changes the nature of the proposal and thus one which is unable to be contemplated for assessment in these proceedings.
24	The Appellants rear yard is quite large by current standards. Why it has been necessary to position the building as proposed is not immediately obvious. I acknowledge that some attention has been given to render the pitch of the roof compatible with those which feature in the vicinity of the subject land and that attempts have been made to overcome some of its functional shortcomings. They are redeeming aspects of the proposal but not sufficient to bring it into adequate conformity with the Development Plan when read as a whole.
25	The appeal is dismissed. The decision of the Council is confirmed.
26	There will be an order to that effect.