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WILLIAMS v CITY OF CHARLES STURT [2008] SAERDC 1 (4 January 2008)

Last Updated: 7 January 2008

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.

WILLIAMS v CITY OF CHARLES STURT

[2008] SAERDC 1

Judgment of Commissioner Green

4 January 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refusal by the Council - double carport - Residential Zone and Mid Suburban Policy Area 2 - visual amenity, character and dominance of the carport considered in the site, streetscape and locality contexts - not sufficiently meeting the Development Plan - appeal dismissed - decision of the Council confirmed.
Development Act 1993, referred to.
Dal Pra v City of Happy Valley [1998] EDLR 107; Darling v City of Charles Sturt [2007] SAERDC 54, considered.

WILLIAMS v CITY OF CHARLES STURT
[2008] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This matter is an applicant appeal against the decision of the City of Charles Sturt (the Council) to refuse to grant Development Plan Consent to Development Application No. 252/0748/07, made under the Development Act 1993, for the erection of a double carport extension to an existing dwelling at 81A Glyde Street, Albert Park. The Council refused the application for the following reasons:

1. It is at variance with Council Wide Principles of Development Control 124, 125 and 128.
2. It is at variance with the Mid Suburban Policy Area 2 Desired Future Character Statement and Principle of Development Control 3.
3. Specifically the Development will result in a building setback which is at variance with the Development Plan and is of a form and appearance that would be out of character with the Mid Policy Area 2.

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

Registration date of application:	11 April 2007
Subject land address:	81A Glyde Street, Albert Park (Allotment 101, DP46843, CT Vol. 5402 Fol. 697)
Existing use:	Detached dwelling with single width garage used for domestic storage
Development proposal:	Erect double carport extension to front of dwelling
Relevant authority:	City of Charles Sturt
Relevant/appropriate Development Plan:	Charles Sturt (City) consolidated version 25 January 2007
Relevant Zone/Area:	Residential (RZ hereafter) – Mid Suburban Policy Area 2 (PA2 hereafter)
Date of decision:	11 July 2007
Appeal lodged:	3 September 2007
Conference concluded:	3 October 2007

3 The Court viewed the subject land and the locality on the morning of Thursday, 29 November 2007, in the presence of the parties.
4 Witnesses providing evidence to assist the Court and to which regard is given comprised, for the appellant, the appellant in-person, a lay witness; and for the respondent Council, Mr P Davos, an experienced, qualified now consultant town planner (refer Exhibit R2).

Subject Land

5 The subject land is located on the eastern side of Glyde Street some 120 metres north of West Lakes Boulevard and a suburban railway line and relatively centrally in Glyde Street which connects at its northern end to Port Road. The subject land allotment was created by a land division apparently approved by the Council in 1996.
6 The subject land is relatively flat and contains a single storey detached dwelling though abutting and adjoining a new dwelling to the north. It is rectangular in shape with a relatively narrow frontage and width of 9.30 metres and a depth of 35.60 metres.
7 The existing dwelling (and former garage) are set back approximately 8 metres from the street boundary and there is space in the driveway for the parking of two motor vehicles side-by-side, together with a "side-on" car space in front of the dwelling and parallel to the street extending across the front yard.
8 In the order of half or more of the front setback area appears to be paved and there are low fences/walls to the front yard boundaries. There is presently limited vegetation remaining in the front yard, however, the appellant is keen to rectify that on completion of the garage project. Relatively limited space only is available for deep planting.

The Development Proposal

9 The development proposal before the Court (refer Exhibit R1 pp 3-7) involves the construction of a double width (5.557 metre) carport structure to be located at the front of the existing detached dwelling. The carport would be a "Stratco Outback" style, steel framed structure with steel pillars supporting a portal frame. The roof would comprise a Dutch Gable and be clad with "Bushland Grey" Colourbond sheeting. The fascias would also be of steel and "Bushland Grey" coated sheeting. The gutters are shown to be pre-painted and a "Rainforest" colour. The carport would be attached to the front of the existing dwelling and a box gutter would direct stormwater to the northern side of the site. There would be no walls, sides or roller-doors or any gates to provide semi-open, "see-through" appearance to the structure.
10 The carport is proposed at 6.0 metres in length along its northern side and 5.6 metres along its southern side to take into account the stepped nature of the house. The front of the carport is proposed to be located some 1.5-2.0 metres from the street boundary as scaled from the plans and verified onsite.

Locality

11 Comprising that part of the area surrounding the subject land of tangible influence on it and that this specific proposal affects, to a notable degree, I find that the locality is to be based on visual amenity and character perception factors. I have noted that defined by Mr Davos (attached to Exhibit R2) and I generally agree with it on an overall character perception basis. It extends from Botting Street to the west, to Murray Street to the east, to the intersection of Glyde Street with West Lakes Boulevard and to the railway line to the south and to the north to a cross street with Glyde Street named Nesbit Street. The locality defined is relatively typical of the general character, setbacks and style of housing which forms the Albert Park neighbourhood.
12 As described by Mr Davos,

The locality consists of a range of generally well maintained pre and post war single-storey dwellings with recent examples of infill development including detached dwellings and semi-detached dwellings on medium sized allotments with open front gardens and medium setbacks from the street. The older dwellings within my [sic – the] locality have generally consistent setbacks, materials, roof forms and garaging. The more recent residential developments within the locality have been designed to reflect the existing character with consistent setbacks, materials, roof forms and garage door widths with garages set behind the main face of the dwelling.

It was Mr Davos’s opinion that these architectural elements collectively formed a well-established character of the locality which created a reasonably high level of amenity with the exception of those dwellings which faced West Lakes Boulevard.

13 Mr Davos noted that whilst there were a number of examples of garages and carports being located on or near the street alignment, that they are generally located to the rear or side of dwellings and do not impact, in his opinion, on the presentation to the street. A particular exception which he noted was the property at 81 Glyde Street to the north adjoining the subject land where there was a double garage but nevertheless, set back in line with the existing dwelling. That garage is said to be part of the original dwelling/building design and whilst significant it did not visually dominate its presentation to the street given its setback the same distance as the dwelling. I also understand that its allotment is wider than that of the subject land.
14 Further exceptions were also noted at 77 Glyde Street with a single carport located on the street alignment but apparently approved and built prior to 1998, and most particularly at 94 Glyde Street (diagonally opposite) there is a two storey block of residential flats with open carports located on the street frontage and/or approximately 2 metres from it. These appeared to date from the early 1970s. These carports were in relatively poor condition. In the opinion of Mr Davos these exceptions did not diminish the overall established character of the locality and should be discounted and not emulated.
15 In addition to the above, there are approvals within Exhibit R3, although only one is within the locality, for carports/garages. I have noted those as well as the appearance generally of carports/garages in the whole length of Glyde Street and particularly at numbers 2, 7, 19, 27 and 52 as pointed out to me on the view.

Relevant Development Plan Provisions

16 I have noted the provisions referred to by counsel, the appellant and Mr Davos, the only expert witness, and I find the following to be the provisions in the appropriate/relevant Development Plan providing the most guidance particularly with respect to the key issues in focus in this matter.

COUNCIL WIDE (CW hereafter)
Objectives: 1, 14, 33 (and paragraph thereafter); and
Principles of development control: 2, 3, 4(c), 123-125, 128, 131, 132, 136 (DT 136.2), 137 (DT 137), 139, 156 and 176.

RESIDENTIAL ZONE (RZ hereafter)
Objective: 1; and
Principle of development control: 3.

RESIDENTIAL ZONE (MID SUBURBAN POLICY AREA 2)
DESIRED FUTURE CHARACTER; and
Principles of development control: 3 and 4.

Processing

17 The Council categorised the development proposal as Category 2 and it would appear that following limited public notification, no representations were received. In addition, except for internal referrals, there appeared to be no requirement for referrals to external agencies and departments.

Assessment Approach

18 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 must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.
19 In terms of s 35 and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Plan guidelines and involves weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the RZ and PA2 and tested in the specific site and locality context. The 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. 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 consent.

Planning Assessment

20 The key bundle of issues arising from the relevant Development Plan policy guidelines listed above for the assessment of this matter are clearly the siting, setbacks, width, design and general appearance/degree of dominance of the proposed carport structure having regard to the subject land itself, the streetscape, locality and other direct visual amenity and character effects arising. The Development Plan generally seeks consistency of development with the Desired Future Character, reinforcement or enhancement of the established residential character, development complementary to the established character and compatible built form. These guides require careful, sensitive modern designs to achieve visual continuity of buildings, but not visual dominance of buildings such as carports or garages over other structures. Mr Davos has quoted and addressed the most specific, relevant provisions in the Development Plan. It is fair to conclude that his evidence was not seriously challenged by the appellant in her case, comprising her own evidence, views and opinions as a lay person, and she chose not to call any contrary evidence from a like expert.
21 Whilst Mr Davos was of the opinion that the Albert Park locality was slightly above average for residential amenity, with which I disagree to an extent, nothing turns on that and there is a relatively well defined streetscape character for Glyde (and other) streets incorporating:
• wide/open streets and verges;
• relatively low and/or open front fencing providing views (through to the);
• relatively open front gardens/yards with some but minimal heavy vegetation providing any strong screening effect; and
• dwellings mostly of single-storey (but with some two storey) open to view and setback 8 metres or more from the front primary street boundary and with garaging (carports and garages) mostly to the side or rear of the respective dwelling and not forward of it – though several exceptions were noted and observed on the view but they did not change the overall effect on the character of the locality or streetscape.
22 The appellant’s case placed emphasis on a number of exceptions in the locality rather than the policies which expressed the desired character for the future as the zone and policy area evolves.
23 There is ample authority (Dal Pra v City of Happy Valley [1995] EDLR 107 and others) to the effect that so called "bad" examples of development are not wisely used as precedents or examples for other development to replicate, particularly where contrary to desired future character descriptions expressed in a relevant zone and/or policy area guidelines. I acknowledge, but place limited weight on the old flat roof carports in front of a two storey residential flat building at 94 Glyde Street to the south-west; or on the double garage integrated with, but not forward of the dwelling adjoining to the north at 81 Glyde Street (or others in the bundle contained in Exhibit R3). I have considered, but also placed limited weight on the garaging/storage needs of the appellant (and her family). This matter is not finely balanced and I do not consider that heavy or significant weight should be given to such needs over clear expressions of policy in the Development Plan.
24 If approved and built as proposed in Exhibit R1 (pp 3-7), there is some likelihood, in my assessment, that other owners may seek to utilise such an outcome under the current Development Plan policy regime and that this may create a progressive built form character trend at odds with the RZ and CW planning guidelines in the Development Plan.
25 Due to the extent of the forward projection of the carport from the dwelling (some 5.60 metres), its width (5.557 metres) and proportion of the allotment width (some 60 per cent), height to ridge (3.4 metres) and with only a 1.5-2 metre setback to the front boundary, an absence of any significant peripheral screening features such as trees/vegetation, fencing/walls or other structural elements, I generally agree with Mr Davos and assess and conclude that the proposal would:
• not be in sufficient conformity with the design future character for Mid Suburban Policy Area 2 and expressed in Principles 3 and 4 – that the development is not sensitive and appropriately responsive to the locality as defined above, in terms of front setback and roof pitch (though the latter is capable of easy correction), so as to complement, be consistent with and enhance the established character of the area. In my view, it would be a discordant, jarring element that would be obtrusive except from one angled view from the south, and it is a significant departure from the complying development front setback standard of 5.5 metres (RZ Principle 4 and Table ChSt/1) and with setbacks envisaged for garages/carports of 0.5 metres behind the face of the dwelling;
• be most unsatisfactory in terms of building appearance and neighbourhood character (refer CW Principles 124(a)(g), 125, 131(a), 132, 136(a) and 137(a)(b)), principally due to the combination of its built form, front boundary setback, positioning well forward of the dwelling on the subject land and adjoining land and its (double) width relative to the relatively narrow frontage width, some 60 per cent compared to the guide of 50 per cent, causing a lack of compatibility with the existing and desired character for the locality, a degree of dominance of the dwelling in the visually cohesive streetscape that is not acceptable and with an absence of enhancement aspects sought from new development; and
• not be a proposal with some deficiencies that can be retrieved and made acceptable particularly by additional landscaping (which might only screen from the side/angled but not full front-on views of the building), or other practical minor amendments. I also hold reservations that approval and implementation of this development could lead to more similar developments in Glyde Street, a trend and built form outcome that would be moving away from and contrary to the existing and desired future character for the policy area and applied in the particular locality and streetscape concepts.

Conclusion

26 Having carefully considered the proposal, the evidence, what I saw on the view, the relevant Development Plan guidelines and authorities referred to me by counsel (particularly Darling v City of Charles Sturt [2007] SAERDC 54), I have assessed the proposal as not sufficiently meeting the Development Plan as a whole, including the intent of the most specific Policy Area 2 guidelines and tested in the locality and streetscape context. In that I agree generally with the opinions of Mr Davos, the only expert called and not seriously challenged in cross-examination by the appellant or by me. The development proposal is not worthy of Development Plan Consent.

Decision

27 The appeal is dismissed. The decision of the Council to refuse the application is upheld. There will be an order to that effect.

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3	The Court viewed the subject land and the locality on the morning of Thursday, 29 November 2007, in the presence of the parties.
4	Witnesses providing evidence to assist the Court and to which regard is given comprised, for the appellant, the appellant in-person, a lay witness; and for the respondent Council, Mr P Davos, an experienced, qualified now consultant town planner (refer Exhibit R2).

5	The subject land is located on the eastern side of Glyde Street some 120 metres north of West Lakes Boulevard and a suburban railway line and relatively centrally in Glyde Street which connects at its northern end to Port Road. The subject land allotment was created by a land division apparently approved by the Council in 1996.
6	The subject land is relatively flat and contains a single storey detached dwelling though abutting and adjoining a new dwelling to the north. It is rectangular in shape with a relatively narrow frontage and width of 9.30 metres and a depth of 35.60 metres.
7	The existing dwelling (and former garage) are set back approximately 8 metres from the street boundary and there is space in the driveway for the parking of two motor vehicles side-by-side, together with a "side-on" car space in front of the dwelling and parallel to the street extending across the front yard.
8	In the order of half or more of the front setback area appears to be paved and there are low fences/walls to the front yard boundaries. There is presently limited vegetation remaining in the front yard, however, the appellant is keen to rectify that on completion of the garage project. Relatively limited space only is available for deep planting.

13	Mr Davos noted that whilst there were a number of examples of garages and carports being located on or near the street alignment, that they are generally located to the rear or side of dwellings and do not impact, in his opinion, on the presentation to the street. A particular exception which he noted was the property at 81 Glyde Street to the north adjoining the subject land where there was a double garage but nevertheless, set back in line with the existing dwelling. That garage is said to be part of the original dwelling/building design and whilst significant it did not visually dominate its presentation to the street given its setback the same distance as the dwelling. I also understand that its allotment is wider than that of the subject land.
14	Further exceptions were also noted at 77 Glyde Street with a single carport located on the street alignment but apparently approved and built prior to 1998, and most particularly at 94 Glyde Street (diagonally opposite) there is a two storey block of residential flats with open carports located on the street frontage and/or approximately 2 metres from it. These appeared to date from the early 1970s. These carports were in relatively poor condition. In the opinion of Mr Davos these exceptions did not diminish the overall established character of the locality and should be discounted and not emulated.
15	In addition to the above, there are approvals within Exhibit R3, although only one is within the locality, for carports/garages. I have noted those as well as the appearance generally of carports/garages in the whole length of Glyde Street and particularly at numbers 2, 7, 19, 27 and 52 as pointed out to me on the view.

20	The key bundle of issues arising from the relevant Development Plan policy guidelines listed above for the assessment of this matter are clearly the siting, setbacks, width, design and general appearance/degree of dominance of the proposed carport structure having regard to the subject land itself, the streetscape, locality and other direct visual amenity and character effects arising. The Development Plan generally seeks consistency of development with the Desired Future Character, reinforcement or enhancement of the established residential character, development complementary to the established character and compatible built form. These guides require careful, sensitive modern designs to achieve visual continuity of buildings, but not visual dominance of buildings such as carports or garages over other structures. Mr Davos has quoted and addressed the most specific, relevant provisions in the Development Plan. It is fair to conclude that his evidence was not seriously challenged by the appellant in her case, comprising her own evidence, views and opinions as a lay person, and she chose not to call any contrary evidence from a like expert.
21	Whilst Mr Davos was of the opinion that the Albert Park locality was slightly above average for residential amenity, with which I disagree to an extent, nothing turns on that and there is a relatively well defined streetscape character for Glyde (and other) streets incorporating:
•	wide/open streets and verges;
•	relatively low and/or open front fencing providing views (through to the);
•	relatively open front gardens/yards with some but minimal heavy vegetation providing any strong screening effect; and
•	dwellings mostly of single-storey (but with some two storey) open to view and setback 8 metres or more from the front primary street boundary and with garaging (carports and garages) mostly to the side or rear of the respective dwelling and not forward of it – though several exceptions were noted and observed on the view but they did not change the overall effect on the character of the locality or streetscape.
22	The appellant’s case placed emphasis on a number of exceptions in the locality rather than the policies which expressed the desired character for the future as the zone and policy area evolves.
23	There is ample authority (Dal Pra v City of Happy Valley [1995] EDLR 107 and others) to the effect that so called "bad" examples of development are not wisely used as precedents or examples for other development to replicate, particularly where contrary to desired future character descriptions expressed in a relevant zone and/or policy area guidelines. I acknowledge, but place limited weight on the old flat roof carports in front of a two storey residential flat building at 94 Glyde Street to the south-west; or on the double garage integrated with, but not forward of the dwelling adjoining to the north at 81 Glyde Street (or others in the bundle contained in Exhibit R3). I have considered, but also placed limited weight on the garaging/storage needs of the appellant (and her family). This matter is not finely balanced and I do not consider that heavy or significant weight should be given to such needs over clear expressions of policy in the Development Plan.
24	If approved and built as proposed in Exhibit R1 (pp 3-7), there is some likelihood, in my assessment, that other owners may seek to utilise such an outcome under the current Development Plan policy regime and that this may create a progressive built form character trend at odds with the RZ and CW planning guidelines in the Development Plan.
25	Due to the extent of the forward projection of the carport from the dwelling (some 5.60 metres), its width (5.557 metres) and proportion of the allotment width (some 60 per cent), height to ridge (3.4 metres) and with only a 1.5-2 metre setback to the front boundary, an absence of any significant peripheral screening features such as trees/vegetation, fencing/walls or other structural elements, I generally agree with Mr Davos and assess and conclude that the proposal would:
•	not be in sufficient conformity with the design future character for Mid Suburban Policy Area 2 and expressed in Principles 3 and 4 – that the development is not sensitive and appropriately responsive to the locality as defined above, in terms of front setback and roof pitch (though the latter is capable of easy correction), so as to complement, be consistent with and enhance the established character of the area. In my view, it would be a discordant, jarring element that would be obtrusive except from one angled view from the south, and it is a significant departure from the complying development front setback standard of 5.5 metres (RZ Principle 4 and Table ChSt/1) and with setbacks envisaged for garages/carports of 0.5 metres behind the face of the dwelling;
•	be most unsatisfactory in terms of building appearance and neighbourhood character (refer CW Principles 124(a)(g), 125, 131(a), 132, 136(a) and 137(a)(b)), principally due to the combination of its built form, front boundary setback, positioning well forward of the dwelling on the subject land and adjoining land and its (double) width relative to the relatively narrow frontage width, some 60 per cent compared to the guide of 50 per cent, causing a lack of compatibility with the existing and desired character for the locality, a degree of dominance of the dwelling in the visually cohesive streetscape that is not acceptable and with an absence of enhancement aspects sought from new development; and
•	not be a proposal with some deficiencies that can be retrieved and made acceptable particularly by additional landscaping (which might only screen from the side/angled but not full front-on views of the building), or other practical minor amendments. I also hold reservations that approval and implementation of this development could lead to more similar developments in Glyde Street, a trend and built form outcome that would be moving away from and contrary to the existing and desired future character for the policy area and applied in the particular locality and streetscape concepts.