PHILLIPSON & ANOR v CITY OF MARION [2007] SAERDC 4 (13 February 2007)

Last Updated: 2 March 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.

PHILLIPSON & ANOR v CITY OF MARION

[2007] SAERDC 4

Judgment of Commissioner Mosel

13 February 2007

LOCAL GOVERNMENT - TOWN PLANNING

Development application for three 2-storey dwellings - Residential (General) Zone, Redevelopment Policy Area 17 - consent refused by the Council - subject land suitably placed to satisfy the guidelines for locating medium density residential development - height and scale satisfy the numerical provisions - assessment a finely balanced exercise weighing compliance against numerical provisions against the quality of development sought and external impact - inadequate front and side setback distances and insufficient landscaping tip the scales against the proposed development - appeal dismissed - decision of the Council confirmed.
Development Act 1993; Development Regulations 1993, referred to.
Dal Pra v Corporation of the City of Happy Valley [1995] EDLR 107, considered.

PHILLIPSON & ANOR v CITY OF MARION
[2007] SAERDC 4

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This appeal is in respect of a decision by the City of Marion ("the Council") to refuse consent to a residential development proposed at 12 Oak Avenue, Clovelly Park ("the subject land").

2

The development proposed is detailed in the bundle of plans received as Exhibit A1. In broad terms it involves the demolition of the existing dwelling and the construction of three, 2 storey dwellings. Attached to each is a garage. Vehicular access to the dwellings is by way of a common driveway. The layout and essential features of the development proposed are depicted on the plans attached to this decision.

The Subject Land

3	The subject land is generally flat and situated on the southern side of Oak Avenue. It is occupied by a single storey detached dwelling (setback about 12 metres from the front boundary) and an outbuilding. It has a frontage of 16.76 metres, an average depth of about 46.2 metres and an area of about 774 square metres. It is a north facing parcel of land as are many in the neighbourhood.
4	Immediately to the east is land occupied by three dwellings two of which are two storey in height. To the south and west are single storey dwellings on large allotments.

The Proposal Characterised

5

The Council, in its decision notification, characterised the proposal, in part, as "three 2 storey group dwellings". Schedule 1 of the Development Regulations 1993 defines a number of different types of dwellings. The proposed development does not fit neatly within any of the various types in Schedule 1 with the exception that each of the buildings contains a "dwelling". Reference to the schedule suggests to me that the proposed dwellings are defined as either "three 2-storey dwellings" or "a 2-storey dwelling and a 2-storey residential flat building containing two dwellings".

6

Several provisions of the relevant Development Plan (for example in respect of site area and dimensions, site coverage and floor area ratio) do not adequately recognise development defined in this way. However, neither party took issue with its strict characterisation. In the circumstances, I have proceeded with the assessment as if the provisions for a group dwelling or residential flat building apply. In the end, there is no dispute that the proposed development would otherwise be regarded as a medium-density residential scheme. Characterising the type of dwellings as group dwellings or residential flat buildings is the closest approximation for the purpose of assessment.

Witnesses

7	Ms Wendy Bell and Mr John Maitland provided evidence in the case for the Council. I accept both as experts in their respective fields. Their statements of evidence were received as Exhibits R2 and R3 respectively.
8	Mr Phillip Weaver and Ms Lynette Brandwood provided evidence in the appellant’s case. Mr Weaver is a recognised expert in his field. His statement of evidence is contained in Exhibit A4.
9	I cannot accept Ms Brandwood’s statement or oral evidence as that of an expert planner. Ms Brandwood does not yet possess the appropriate qualifications nor has the necessary experience to provide expert opinion to assist the Court. Nevertheless, I accept Mr Roder’s submissions that there are matters of fact contained in her report (MFI A3) that are helpful in the assessment.

The Locality

10	The character of existing development in the vicinity of the subject land is a relevant consideration in these proceedings. I accept the area defined by Ms Bell as the relevant locality. Ms Bell summarised the character of the locality as follows:

The locality is characterized by low scale, low density, older residential stock of a traditional form with substantial street set-backs and with a small number of low-to-medium density single and medium density two storey developments on larger allotments. The overall quality of the streetscape in the locality suffers from a lack of street trees, landscaping of open space and inconsistency in the quality of fencing.

11	Ms Bell also made more detailed observations about the features that make up the streetscape. Among other things she remarked as follows:

A distinctive feature of this locality are the generally significant set-backs of dwellings particularly on the southern side of Oak Avenue where 12 metre set-backs are common, only diminishing towards the eastern and western ends ...

12	I accept Ms Bell’s description. The exceptions to the large setback distances referred to by Ms Bell are few but are, nonetheless, a consideration.
13	In her report Ms Brandwood identified the presence of several sites having on them medium density residential development (Nos. 2, 14, 21 and 20-22 Oak Avenue). The type of development on those properties and their appearance and siting with respect to front and side boundaries are relevant considerations. However, it must be said that their presence does not alter the fact that most allotments in the locality are occupied by single storey dwellings at low density set back a considerable distance from Oak Avenue.
14	The dwelling immediately to the west has a large rear yard. This is its principal private open space and is associated with the semi-private covered area adjacent its rear door. The relationship between the proposed development and this part of the neighbour’s land is a consideration.
15	In my view nothing can be taken from the provisional development plan consent issued for the two storey dwellings at 13 Oak Avenue. There is no evidence that construction is imminent.

The Development Plan

16

The relevant Development Plan for the area of the Council is dated 10 November 2005. The subject land is situated within the Residential (General) Zone ("the Zone") and Redevelopment Policy Area 17 ("the Policy Area"). It is depicted on Maps Mar/9 and 25. The policy intent for the Zone and Policy Area is a relevant consideration. Objective 1 for the Zone and its explanatory statement are in the following terms:

Objective 1: A zone containing a range of dwelling types at low to medium densities.

This zone will be developed as a residential area containing a range of dwelling densities from low to medium, with a predominance of medium density housing in areas in close proximity to district or regional centres, public transport and public open space, and in the Medium Density Policy Area 16 and Redevelopment Policy Area 17. The policy areas in this zone are shown on Maps Mar/19 to 34. Development will be required to enhance the Desired Character expressed for the applicable Policy Area. (emphasis added)

17	The Policy Area is established "primarily for medium density residential development" in accordance with the stated desired character. The relevant passages of the desired character are expressed as follows:

The Desired Character of the Policy Area is derived from high quality and distinctive living environments at a higher density compared to that typical of the original dwelling stock in the Area. The Policy Area will be characterised by integrated development at low-medium and medium densities, with a wide range of dwelling types to meet a variety of accommodation needs for public housing tenants and the private housing sector.
Buildings of up to two storeys in height are appropriate, with three storey buildings also being appropriate provided the impact of their additional height and bulk does not adversely impact on existing neighbouring development and neighbouring amenity.
Medium density development should predominate adjacent to public open space reserves, major transport routes, shops and community facilities, but can be dispersed throughout the Policy Area as part of major comprehensive redevelopment projects.
Amalgamation of properties is desirable where it will facilitate appropriately designed medium-density development. For larger areas, a comprehensive scheme for the development of a range of dwelling types is desirable.
(emphasis added)

18

The Zone covers a large part of the area of the Council. There are several areas within the Zone that are the subject of the provisions for the Policy Area. That part of the Policy Area in which the subject land is situated is in the south-eastern sector of the City, adjacent the boundary with the City of Mitcham, Main South Road and Sturt Road and near the Flinders University Campus and associated sports grounds and Flinders Medical Centre.

19

Also for consideration is the explanatory text relevant to the Policy Area:

This Policy Area encompasses areas which were recently redeveloped or are suitable for comprehensive redevelopment where the density of new development will substantially exceed that of existing low density housing. Much of the existing development in the Area comprises older public housing, primarily detached or semi-detached dwellings of varying age and construction materials. (emphasis added)

20

The policy objectives for the Policy Area are supported by a number of principles. Principle 4, among other things, urges the establishment of landscaping to "provide amenity for adjacent dwellings". Principle 5 seeks to limit the height of a building to 9 metres. Principle 7 establishes the average site area for a group dwelling or residential flat building to be 200 square metres. Site coverage and floor area ratio guidelines of 100 square metres (or 40%) and 0.7 respectively are established in Principle 9.

21

Also of relevance are several provisions that are intended to establish appropriate standards of amenity for the proposed dwellings and to ensure compatibility between new development and its locality. Ms Bell listed and evaluated the relevant provisions comprehensively. Those of most relevance in the proceedings are as follows:

Redevelopment Policy Area 17

2 Development should achieve cohesive streetscapes whilst allowing for variety in housing form and style. Buildings of up to two storeys are appropriate, and three storey buildings are also appropriate subject to neighbourhood amenity not being adversely affected.

Council Wide Principle/Performance Criteria

65 Buildings should be designed and sited in such a manner that they do not detract from the amenity of the private open space of adjoining properties by virtue of their bulk and appearance by:
(a) separating upper storey parts of buildings from neighbouring private open space so as to avoid an unreasonable sense of visual enclosure; and

(b) using articulation, colour and detailing to reduce visual bulk (refer Figure 2).

67 Garages and carports should:

(a) not visually dominate the street elevation of the associated dwelling in terms of their width; and
(b) have a roof form and pitch, scale, building materials and detailing that do not detract from the character of the associated dwelling.

...
72 Setback of dwellings from public roads should:
(a) contribute to the attractive existing streetscape character of the area;

(b) provide adequate visual privacy by separating habitable rooms from pedestrian and vehicle movement;
(c) be similar to or compatible with setbacks of buildings on adjoining land and dwellings in the locality;

(d) not dominate the streetscape character of the locality; and
(e) protect, where practicable, existing significant views enjoyed by nearby

residents.

73 The siting of garages and carports should:
(a) not diminish the attractiveness of the streetscape;

(b) not dominate presentation of the associated or adjoining dwelling to the street;

(c) provide for adequate on-site car parking;
(d) not adversely impact on the amenity of neighbours;
(e) not adversely impact on the safety of adjoining road users; and

(f) provide for adequate sight-lines for reversing manoeuvres onto the street.

74 Dwelling setbacks from side and rear boundaries should be progressively
increased as height increases and be compatible with the character of surrounding
development to:
(a) minimise the visual impact of buildings from adjoining properties;
(b) minimise the overshadowing of adjoining properties;
(c) maintain adequate natural light to existing and proposed dwellings; and

(d) promote energy conservation and comfort by maintaining adequate access of winter sunlight to the main ground-level internal day living area of existing dwellings on adjoining land.

...
78 Garages, carports and pergolas constructed on side boundaries should be limited in
length and height to:
(a) minimise the visual impact of buildings from adjacent properties;
(b) minimise the overshadowing of adjoining properties; and
(c) maintain adequate natural light to adjoining dwellings.
...
80 Buildings should be sited and designed to ensure that adequate winter sunlight is
available to:
(a) ground level private open space of existing dwellings;

(b) upper level balconies which provide the primary open space area for any existing dwelling; and

(c) habitable room windows of nearby dwellings.
...
86 The area of private open space referred to in DT 86.2(c) should, where possible:
(a) achieve comfortable year-round use by having a northerly aspect;

(b) not be significantly shaded by the associated dwelling or other development during winter; and
(c) be shaded in summer to minimise heat and shield occupants from ultraviolet radiation.

...

116 Landscaping should be provided to enhance the amenity of all areas of communal open space, shared driveways and shared car parking areas and housing on major traffic routes.

117 Landscaping should be designed to (refer Figure 23):
...

(c) complement built form (ie, taller and broader plantings, against taller and bulky building components);
...
(h) provide for shielding of occupants using sensitive outdoor areas, eg. Communal play areas, from ultraviolet radiation;
(i) provide for paved areas, grassed areas and areas for landscaping with trees and shrubs to improve environmental amenity;
(j) incorporate appropriate stormwater measures in a manner that will not prejudice the structural integrity of buildings;
(k) provide a buffer between driveways (both on-site and on neighbouring properties) and habitable room windows of dwellings;
(l) provide a buffer (incorporating trees) along side and rear property boundaries;

...

(emphases added)

22

In applying these provisions I have also taken into account the several objectives in the Council wide section of the Plan under the headings "Form of Development", "Residential Development" and "Appearance of Land and Buildings" and the many Design Techniques associates with the Performance Criteria cited above.

The Principal Planning Issues and Assessment

23	Having listened carefully to the submissions of Mr Roder and Mr Robertson and the evidence of Ms Bell and Mr Maitland the issues in these proceedings are essentially these:

(i) whether the subject land is in a part of the Policy Area that is considered suitable for redevelopment with dwellings at medium density;
(ii) whether buildings of the proposed height and bulk are sited in a manner that is compatible with adjoining dwellings and the character and amenity of the locality; and
(iii) whether the design of the proposal establishes the quality of living environment envisaged in the Plan.

24	Ms Bell’s evidence acknowledged that the proposed development met many of the numerical provisions of the Plan including site area, site coverage, building height, side and rear setback distances, car parking spaces and open space. In respect of the issue in (i) above, Ms Bell opined in Exhibit R2 that the proposal failed to adequately meet the tests in the Desired Character for the location of a medium density development. In her view, the subject land was not immediately adjacent to the facilities identified in the Plan nor does it form part of a comprehensive redevelopment scheme. However, during her oral evidence, Ms Bell conceded that the Desired Character could be read in a way that supports, in broad terms, the use of the subject land for medium density residential development.
25	It would be against established law to regard the circumstances for developing (comprehensive schemes, property amalgamation) and locating (adjacent to the specified facilities) medium density residential development as mandatory requirements as Ms Bell’s statement appeared to do. The Desired Character and supporting Objectives and Principles are guidelines. Furthermore, the provisions for the Policy Area apply to many different parts of a very large zone which have, no doubt, a wide range of circumstances to be considered. It is a matter of fact that many of the facilities spoken of in the Desired Character are near the subject land. It is also apparent from Ms Bell’s locality plan that the area defining the Policy Area in this region of the Zone has been the subject of redevelopment for medium density. Over thirty such properties have been identified by Ms Bell.
26	All things considered the subject land is suitably placed for it to satisfy the broad intent of the Desired Character insofar as it seeks to locate medium density residential development in particular and appropriate circumstances.
27	From hereon the assessment is finely balanced. I accept Ms Bell’s evidence to the effect that the scale of the proposed development - measured in the main by site area, site coverage, floor area ratio and building height – is well within the numerical guidelines for the Policy Area. Important measures they may be but they do not sit alone.
28	There is a vast array of provisions for residential development in the Council wide section of the Plan that are also for consideration. They include a number of Principles (or Performance Criteria) and associated Design Techniques. The appellants case places weight on the fact that the buildings - in respect of the side and rear boundary setback distances – effectively comply with the relevant design techniques. That is a factor for consideration. However to rely on design techniques alone would be to ignore the instructions in the text preceding Principle/Performance Criteria 62. It says, inter alia, the following:

The Performance Criterion provides qualitative guidance for the design of new development and expresses the essential intent of the principle.
Design Techniques are provided as specific methods of meeting a particular Performance Criterion, setting the standards or measurements to be achieved ...
... complying with a Design Technique may nevertheless result in the associated Performance Criterion not being satisfied due to the particular nature and location of the proposed development relative to surrounding development. In all cases emphasis should therefore be placed on satisfying the relevant Performance Criteria. (emphasis added)

29	The appellants case also called in support the setback distances that apply to medium density development of roughly equivalent scale that are established with the locality. That is a fact that is to be considered but weighted in accordance with the circumstances of each case and their disposition in relation to the subject land.
30	Also for consideration is the incremental change to the existing character of the locality that will be occasioned by "... density of new development [that] will substantially exceed that of existing low density housing" when it is progressively introduced in accordance with the Plan.
31	Having carefully considered all of these factors I have concluded as follows:
•	the setback distances from the road boundary to dwelling 1 is not sufficient to meet the intent of Principle 72. At 6.6 metres from Oak Avenue, it is substantially closer to the street boundary than its neighbour to the west. The difference, when viewed in light of the height and bulk of dwelling 1 and its blunt architectural features and appearance renders it in conflict with the intents embodied in items (a), (c) and (d) of that principle;
•	the appellants case is not assisted by the setback of the carport associated with the dwelling to the east. The position of that structure is built forward of the setback distances that generally (but not exclusively) exist in the locality. It is a structure that could hardly be described as an example of good urban design and stands in conflict with the conditions for complying development for a carport in the Zone (Table Mar/1). It is a factor to be considered but not one which weighs heavily in favour of the setback distance intended for dwelling 1 (Dal Pra v Corporation of the City of Happy Valley [1995] EDLR 107);
•	the proposal fails to have sufficient regard to Principles 65 and 74. Although it complies with the relevant (numerical) design technique (74.3), the decreasing setback distance of dwelling 3 from the western side boundary (as its height increases) is in direct conflict with these principles. It fails to provide the necessary compatibility with the open rear yard (and principal of private open space) of the dwelling to the west;
•	insufficient regard has been given to the intent of Principles 116 and 117. The intent of the former is to provide landscaping to "enhance the amenity of all areas of communal open space, shared driveways and shared car parking areas". The latter principle establishes more specific intentions. Ms Bell’s criticisms of this aspect of the proposal was not seriously contested and they are criticisms with which I agree. This is not to say that no attempt has been made to provide landscaping with the proposal. However, the large proportion of the site set aside for shared driveways and car parking (necessitated largely because of the width of depth of the allotment) is largely unrelieved with an appropriate area of planting to achieve an attractive internal living environment; and
•	the principles in respect of energy conservation and comfort have been adequately met. I acknowledge that overshadowing will occur on the open spaces for dwellings 2 and 3. It seems to me that this will always prove a difficult problem to overcome in a Policy Area in which two and three storey dwellings are desired and where a large number of allotments face north. Nevertheless the proposal is most unusual and is to be commended for the specific inclusion in the project of solar panels; which feature appears to me to be a valid trade-off against the other energy conservation shortcomings. With some minor modifications the design of the carports could be brought into line with the intent of Principle 73.

32	I said earlier that the considerations are finely balanced. In the end, the benefits and detriments must be weighed and a judgment made as to whether the proposal is conducive to the Desired Character. In a strategic sense the proposal has much to commend it. It is a proposal broadly supported by the policy directions stated in the Desired Character. However when the finer detail is examined against the provisions that seek to create attractive streetscapes and provide harmony and compatible relationships with neighbours and appropriate internal amenity, the proposal has several shortcomings that together brings it into unacceptable conflict with the above provisions.
33	In so concluding I have given consideration to the weight that should be applied to the various principles relevant in the assessment. In particular I have thought carefully about whether, in light of the broad policy intent for the Policy Area, appropriate emphasis been given to matters of character and amenity. Clearly, there is a difference between the existing character and that envisaged for the Policy Area. Change to the physical environment is inevitable. However, the Plan does not ignore consideration being given to the impact of development on adjacent land nor the amenity and quality of the development itself. There are specific provisions that are to be considered and balanced against the Desired Character and the objectives for the Policy Area and Zone. Granted, the proposal complies quite comfortably with the numerical provisions that are a measure of the scale of new development sought for the Policy Area. However once the height, scale and disposition of the proposal is assesses within the relevant circumstances of the locality the inadequate front setback, the inappropriate setback and appearance of the western wall of dwelling 3 and the general absence of landscaping tip the scales against it.
34	The appeal is refused and the decision of the Council to refuse consent is confirmed.
35	There will be an order to that effect.