MM HASSAN ENTERPRISES PTY LTD v CITY OF UNLEY [2008] SAERDC 2 (4 January 2008)

Last Updated: 7 January 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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MM HASSAN ENTERPRISES PTY LTD v CITY OF UNLEY

[2008] SAERDC 2

Judgment of Commissioner Brine

4 January 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for a mixed use development in the MU1 Zone adjacent to R300 Zone - refused by the Council - heard on appeal which considered Desired Future Character of the Zone - uses sought in the Zone - uses contained in the proposal - provisions of the Zone compared to the form of the proposed development - two storeys of residential development excessive - difficulties of residential development in a mixed use zone - evidence of changing patterns in the Zone rejected - other planning considerations do not balance the lack of compliance with the provisions of the Zone and the threat to the existing character of the area - precedent set by an intrusion of a new use in the area placing undesirable pressure for change - appeal dismissed.

Development Act 1993, referred to.

South East Ward Residents Association Inc v District Council of Grant & Anor [2004] SAERDC 107; Angwin Pty Ltd v City of Norwood Payneham & St Peters [2007] SAERDC 38; Penech Pty Ltd v Development Assessment Commission & Anor (No 1) [2005] SAERDC 57; City of Unley v Hall & Ors [2002] SASC 337; Nadebaum v City of Mitcham [1995] EDLR 587; City of Mitcham v Freckman [1999] SASC 234; (1999) 74 SASR 56; Corporation of the Town of Walkerville v Adeladie Clinic Holdings Pty Ltd & Anor (1985) 38 SASR 161, considered.

MM HASSAN ENTERPRISES PTY LTD v CITY OF UNLEY
[2008] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1

This is an appeal against a refusal by the City of Unley to grant Development Plan Consent to Development Application No. 090/262/2007/C3 for a three storey mixed use development with basement and at-grade parking. The Council’s Officer had recommended approval. It was refused by the Council’s Development Assessment Panel on the grounds that the proposed development was contrary to the Unley (City) Development Plan (consolidated 11 May 2006), Mixed Use 1 Zone, Principles of Development Control 1, 2, 3 and 4(a) and [Council Wide] Objective 5.

2

Mr J Costello represented MM Hassan Enterprises Pty Ltd. Expert witnesses for the appellant were:

• Mr P Brunning, a town planning consultant;

• Mr R Danvers, an architectural consultant; and

• Ms J Lovell, a consulting traffic engineer.

3	Mr Gavin Leydon represented the Council. Expert witnesses for the respondent were:

• Mr M Rolfe, a town planning consultant;

• Mr S Weidenhofer, an architecture and heritage consultant; and

• Mr R Weaver, a consulting traffic engineer.

4	The Court viewed the subject site, heard evidence from the expert witnesses and submissions from the legal representatives. The tendered documents and the relevant Development Plan have been carefully considered in the preparation of this judgment.

The Site

5

The site of the proposed development is located at 44-46 King William Road, Goodwood on the northern corner of King William Road and Grace Street. It has a Certificate of Title Volume 5458, Folio 501 which shows the frontage to King William Road to be 10.58 metres, the rear boundary to be 20.29 metres, the boundary to Grace Street to be 40.24 metres, and the northern boundary to be 41.24 metres. The northern boundary is shared with an adjacent former dwelling currently used as an office. The approximate area of the site is 821 square metres. The site has been cleared of all but one Pepper tree (in the southwest corner). It is substantially flat.

6

The Unley (City) Development Plan, consolidated 11 May 2006 shows the site to be located in the Mixed Use 1 Zone. Its rear boundary abuts the RB300 Zone.

The Locality

7	Mr Rolfe chose his locality on visual, character and traffic impacts. It extended up and down King William Road for approximately 140 metres taking in properties either side of the road. It also extended down Grace Street approximately 70 metres taking in properties either side of the street. Mr Brunning’s locality extended further north along King William Road and extended further either side of it, and further along Grace Street. In evidence Mr Rolfe agreed that the subject site was visible from the northern stretch of King William Road shown in Mr Brunning’s locality, at least, from the eastern side of the road.
8	The locality is chiefly in the Mixed Use 1 Zone. To the north, part of the RB300 and the RB400 zones front King William Road. Sites in Grace Street, west of King William Road are in the R300 Zone.
9	The character of the development along King William Road can be divided into three sections. To the south of the site and along the western side of the road the development is commercial. The amenity of this stretch of the road is not high. This section is separated from the subject site by a two storey office block and a recent two storey office block with 4 residences behind it facing Grace Street. The second area with a consistent character sits opposite the commercial section and extends north of the site on both sides of the road towards the creek, which marks the boundary of the MU1 Zone and the Residential Zones. This area has a preponderance of single storey older houses (now used for offices and consulting rooms) set on substantial blocks; significant setbacks from side and front boundaries are characteristic. Interspersed among these blocks are two currently vacant sites and some other forms of development, such as the Council Depot. This area still has a consistent character and high amenity, although none of the erstwhile dwellings or the area itself are listed as having heritage value. Thirdly, to the north of the creek, the character changes; large residential developments sit on sloping land accommodating two and occasionally three storey buildings set in landscaped grounds. The houses along Grace Street are traditional in form and consistent in character apart from the 2 storey dwellings, with garages fronting the street, which are part of the recent mixed development on the opposite corner from the subject site.
10	In choosing the locality for the purposes of this judgment there is some conflict between giving due weight to the defining characters of the various areas and the visibility of the site. After careful consideration I have given preference to visual impact. The locality is defined as stretching along King William Road to the extent defined by Mr Brunning, i.e. 170 metres, but only extending either side of the road for a single block. In addition the locality takes in the extent of Grace Street defined by Mr Rolfe. It contains the character areas referred to above.

The Proposal

11	The proposal is for a three storey building with a shop and a restaurant on the ground floor and four dwellings above, two on each floor. Parking for 15 cars and some storage is contained in a basement below the building. The following areas are shown on the drawings:

• a basement of 426 square metres;

• the shop of 197 square metres;

• the restaurant of 170 square metres;

• two apartments on the first floor, each with an area of 192 square metres;

• two apartments on the second floor each of 197 square metres; and

• circulation space to access the dwellings.

12	The three storey building is located on the frontage to King William Road and on the two side boundaries. Behind this building is an open area with about 17 metres between the building and the rear boundary. It contains an enclosed area for storing rubbish, parking for 11 cars, a retained tree and some landscaping. It is accessed from Grace Street.
13	The proposed building is described as having a number of environmental features including double glazing to windows of the apartments. The character is modern with large areas of glass and cantilevered balconies to the apartments which all face King William Road. The roof appears as flat and the upper storey is setback from the King William Road frontage.

The Development Plan

14	Having carefully considered the recommendations from the expert witnesses, I have come to the conclusion that the most relevant provisions of the applicable Development Plan are as follows:

COUNCIL WIDE

Objectives: 1, 4, 5, 30, 33 and 56; and

Principles of development control: 1-4, 12, 15, 20-29, 54, 56-58, 62, 63, 93-95, 97, 100, 104-106, 110, 111, 117-121, 129, 130, 142, 146, 148, 153, 154, 156-158, 160, 176-178;

MIXED USE 1 ZONE

Objective: 1; and

Principles of development control: 1, 3, 4 and 5.

Table Un/4

15

A reading of the Mixed Use 1 Zone provisions gives a clear picture of the desired future character of the zone as regards building form. It is one which seeks to emphasise the contribution made by the traditional buildings. At the same time it allows for new development that is small in scale and limited to two storeys in height. It attempts to meld the two storey development and the traditional dwelling forms by putting any new second storey development into a roof space and seeks new buildings that are residential in appearance.

16

The Zone provisions also seek to extend the existing uses of the zone.

Character of the Locality

17	I begin this discussion by referring to the opinion of Her Honour Judge Trenorden and others in the case of South East Ward Residents Association Inc v District Council of Grant and Anor [2004] SAERDC 107. They write

[The] Court must first ascertain the desired character, purpose and intent of the zone and assess the proposed development against that. Other factors may also be relevant; including the general provisions of the plan and where applicable, the on-ground reality ... It is an incorrect approach, having found the proposed development at variance with the intent, purpose and desired character of the zone, for the relevant authority to move to the general provisions of the relevant Development Plan, assess the proposal against those, and conclude that, as there would be no negative impacts, and there would be a net economic benefit to the community, the proposed development had sufficient merit to proceed.

18	I take this advice and organise the reasoning of the judgment accordingly. An examination of the character of the zone as seen on the view with the parties and as described in the Development Plan MU1 Zone follows. The King William Road part of the locality is characterised by single storey buildings that were once dwellings and are now consulting rooms/offices. 10 of these buildings are situated adjacent to and opposite the subject site. There are also other forms of development. They are:
•	single storey shops;
•	two story office and residential building immediately to the south of the proposed development;
•	adjacent office building also of two storeys and a single storey warehouse adjacent to it;
•	two vacant sites;
•	Council Depot which is a major intrusion into the area but is made less obvious by being set well back from the road with planting in front of it; and
•	larger residential developments north of the creek and in the north of the locality, located in the R300 and R400 zones.

19	Two site conditions prevail in that part of the MU1 Zone in the locality: The former dwellings sit on moderately large sites, setback from the road and from their side boundaries; the shops and new office buildings that front King William Road are without a setback and are built to the side boundaries. North of the creek the character changes, sites are larger and there is more vegetation including mature street trees. The ground is sloping. Buildings are larger, some in part reaching three storeys. The development in Grace Street in the R300 Zone is an intact residential area with single storey traditional style dwellings.
20	The subject site sits next to four buildings of traditional domestic form and sits opposite six others with the same form and character. The buildings are all setback from the front and side boundaries. None of the buildings are listed but they do form a coherent group and they make an area with the highest amenity and best architectural character in the zone. The provisions of the MU1 Zone appear to seek to limit new development to be compatible with these buildings and sympathetic to the residential buildings in areas abutting the zone. Taken as a whole, the provisions of the zone encourage uses which are likely to be compatible with adjacent residential development and limit the extent of those which might be less compatible. In relation to the form of development envisaged, it appears to seek new development which are limited in area, limited in height and which further reduce the apparent height by including any second storey in the building’s roof space. It can be inferred that the provisions seek to perpetuate the single storey development characteristic of the street.
21	Mr Danvers has described the area as being one which is in a process of transition. There are two vacant sites near to the subject site and two buildings to the south of the subject site which have recently been redeveloped with buildings on King William Road having two storey facades and flat roofs and without a setback to or from their side boundaries. To this extent, Mr Danvers may be right, but elsewhere in the locality there is little change and the character of the area as a whole remains intact. Mr Weidenhofer was also of the opinion that change was limited and the traditional character of the area persisted.

Desired Uses in the MU1 Zone

22	I now turn to examining the proposal in relation to each of the provisions of the Development Plan’s MU1 Zone starting with the provisions relating to land use.

Objective 1: Accommodation of primarily small office and consulting room development of up to 250 square metres of total floor area per individual building, with limited small-scale speciality goods outlets and retail showrooms, and small entertainment facilities, to complement the adjacent centre facilities.

Principle 1: Development should be, primarily, small-scale office and consulting room development, with limited small-scale speciality goods outlets and retail showrooms, and small entertainment facilities such as restaurants.

23

Evidence was given in the hearing and submissions advanced as to the significance of the word "primarily", noting that neither of the two uses designated in this way were present in the proposal. Two of the other uses that were mentioned in the objective and the principle can reasonably be described as those occupying the ground floor of the proposed development. Principle 4 states:

4 Development within the MU1 Zone should:

...

(d) include office, consulting room and similar development, and not consist entirely of shop development.

24

The proposal contains more than "just shop" development but it is less clear whether the other ground floor use (a restaurant) can be classed as "similar development". PDC1 indicates that it is reasonable to do so. I assess that the uses of the ground floor in the proposal are appropriate for the MU1 Zone.

25

In terms of the Zone provisions in the Development Plan, it is the proposal’s upper floor residences that are problematic. Whilst the use is not one which is non-complying in the Zone nor is it mentioned in the Zone’s Objective 1 or in Principle of Development Control 1 (as it is for instance in the MU3 Zone) as being desirable, there is a precedent for allowing residential development in the zone in the building on the opposite corner of Grace Street to the subject site. Here, however, the four dwellings are located behind the offices fronting King William Road and are shielded from the traffic movement and noise by the offices. The situation is different in the proposed development in which all four dwellings face King William Road and which are connected to the non-residential uses by shared parking and probably, though this was not entirely clear, by shared rubbish storage and collection, as well as by their proximity to possible conflict with noise emanating from the restaurant and its patrons. I note the conclusion of Her Honour Judge Cole and others in the case Angwin Pty Ltd v City of Norwood Payneham and St Peters [2007] SAERDC 38 which states:

... that the proposed development is contrary to the objectives for the locality of the site because the residential component of the proposed development is in conflict with the present character and the desired future character of the locality ... and the Policy Area. In addition, the residential component of the proposed development would have the potential to bring about conflict with the present and the potential future industrial uses of land in the locality and Policy Area, particularly with respect to noise. This, in turn, brings about the possibility that the proposed development, were it to proceed, might compromise the attainment of the objectives for the locality.

26

The Zone provisions in the case quoted are likely to conflict more severely with residential use than is the case here. Nevertheless, the possibility of immediate and potential conflict remains and residential development on King William Road might compromise future development envisaged for the Zone.

Scale of the Proposed Development

27	The intention of Principle of Development Control 2 appears to be to limit the area of new buildings so they are comparable to the floor areas of existing development. It states that:

2 Office and consulting room development, together or individually, should not exceed 250 square metres of total floor area per individual building.

28	If this is the aim, its wording is not helpful. It limits only the floor area of a building containing offices or consulting rooms to 250 square metres, perhaps intending to imply other uses should be more curtailed. The proposed building has close to double that area on the ground floor and, in addition has twice that area again on the upper two floors. The development is clearly at odds with this Principle of Development Control.
29	It was argued by Mr Leydon that the purpose of Principle of Development Control 2 was to limit the scale of proposed developments in the zone. If that is so, the proposed building must be seen not only to be well in excess of the extent of development envisaged in the Development Plan but also to constitute a threat to the desired character of the Zone.
30	Principle of Development Control 3 states:

3 Development should not exceed two storeys in height.

31

The proposed development is a three storey building located on the front and side boundaries of the site. At the third level the facade is setback from the frontage. This device was said by Mr Brunning to reduce the impression of the building’s height but Mr Danvers (also an expert witness appearing for the appellant) disagreed; to him, the building was and appeared to be one of three storeys. An alternative device to limit the height of the facade is described in Principle of Development Control 4 and 4(b) which states

4 Development within the Mixed Use 1 Zone should:

...

(b) incorporate the second-storey of development within pitched roof spaces, particularly within portions of the zone adjacent to residential areas.

It is not employed by the proposed building to reduce the apparent height of the facade and the boundary walls.

32	It can also be noted that in Principle of Development Control 4(a) it states that development in the MU1Zone should:

(a) provide a transition between the differing character and scale of adjacent residential and centre zones, with small landscaped building set-back areas, and maintenance of the residential appearance of buildings;

...

33

It was argued by Mr Brunning that the 17 metre deep space behind the proposed building provided the transition to the adjacent residential development in terms of 4(a), that the Pepper tree is to be retained, and the 2.2 metre high rear fence and some planting to the rear of the site would shield the adjacent residence from the car park. Neither the car park nor the rear elevation of the proposed building, 3 storeys high and with extensive areas of glass are of residential scale or appearance. Principle of Development Control 4(c) read:

...

(c) locate car parking areas to the rear of the buildings or behind screen walls and landscaping, so as not to be readily visible from adjacent public roads; and

34	The drawings show that the car park is located to the rear of the building but not to be screened from the street. By locating the car park to the rear and having access through the same area to the basement car park, the proposal also satisfies Principle of Development Control 5:

5 Development should result in low traffic generation, and direct vehicular access to arterial roads should be limited.

35	Both the traffic expert witnesses agreed that the traffic generated on-site was low.

MU1 Zone as a Whole

36

I conclude that the proposal is at odds with the intention and most of the provisions of the Zone expressed in the Objectives and the Principles of Development Control. The proposal’s main land (residential) use is one which is not expressly desired and is one which may create conflict with other uses in the zone and with the uses proposed on the ground floor. Its total floor area is excessive and it is over height relative to the guidelines. In all, it is the two residential floors which are most clearly incompatible with the aims and provisions of the zone.

37

It was the opinion of expert witnesses for the appellant that other parts of the Plan encourage residential development. On balance, the claim is not a strong one. Some Council Wide Provisions encourage residential development in a variety of forms, e.g. the note to Objective 30 which seeks infill housing and Objective 33 which seeks "A diversity of housing to meet the needs and preferences of the community" , but others like PDC130 do not. It states in part:

130 Dwellings forming part of a mixed-use building or in a non-residential zone should:

(a) be developed in conjunction with the primary land use identified in the objectives for the zone, with the primary land use being predominant relative to the total floor area of the development.

38

While there may be economic and social factors for encouraging residential development in Unley, that does not mean that residential development is necessarily desirable in this zone. Other zones, including for instance the MU3 Zone, specifically encourage residential development, the MU1 Zone does not.

39

I now examine further the concept of "transition". Evidence was presented at the hearing that buildings which had been before the Council for approval more nearly resembled the proposed building and that they were further evidence that the area was in a state of transition: a trend in which the proposed building could take a part. This is not an argument which can be sustained. Her Honour Judge Cole in Penech Pty Ltd v Development Assessment Commission and Anor (No 1) [2005] SAERDC 57 writes:

... the fact of a development plan consent, or even a development approval, having been granted for a site within the locality of the appellant’s land (and indeed very close to that land) remains of peripheral relevance in this appeal. This would generally be the case. The fact of approval does not change the character of a locality.

She adds:

... speculation about possible future development, even if steps have been taken down the path of having that approved are of peripheral, if any, use to the Court.

40

I am therefore of the view that details of buildings proposed on other nearby sites, and which may or may not have received planning approvals, should not be given weight as contributing to the character of the locality. Nor can they be taken here to be evidence of a transition to a different character. I also conclude that evidence given as to the height, bulk, siting and character of buildings which may be built on the vacant sites in the area is also of very limited relevance in this case.

41

The two actual buildings to the south of the subject site constitute development which might be taken into account. Neither building is of a character that seems to be sought by the provisions of the Mixed Use 1 Zone. However, it should also be recognised that both are situated in an area of lower amenity than the subject site and at least one of the buildings was replacing a non-conforming use. They may act as a precedent for approving further development but the proposal is significantly different from them: in scale, height, area and bulk. I note the comments of Besanko J in the case of City of Unley v Hall and Ors [2002] SASC 337. He warns against proposals which "accommodate large-scale developments rather than the maintenance of the prevailing small-scale development characteristic of the zone." Further, His Honour Judge Bowering in the case Nadebaum v City of Mitcham [1995] EDLR 587 decided that:

... If the proposal fails in a material respect to meet the relevant provisions of the Development Plan, the fact that it may constitute a precedent within its locality is a matter to which due weight should be given.

42

This proposal is sufficiently different in scale from the two recent office blocks, and sufficiently different in situation from the residences attached to one of them to constitute a precedent. I am of the view that such a precedent as the proposal represents is not in the best interest of maintaining or achieving the character of the locality. To put additional pressure for change on the area by allowing a larger and higher building than is envisaged for this Zone, and intruding into the Zone a use which is not expressly desired at the expense of uses that are sought, makes it less likely that the character of this part of the Zone would be maintained. (See City of Mitcham v Freckman [1999] SASC 234; (1999) 74 SASR 56).

43

Argument was also advanced that the provisions of the Mixed Use 1 Zone were not those which should be used to judge the merits of the proposed development which was one which should be approved as having other town planning attributes. In relation to this argument I was referred to Jacobs J in the case of Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd and Anor (1985) 38 SASR 161 which states:

... there is nothing in the Plan which is mandatory or necessarily compulsive; ultimately every planning decision rests upon a planning judgment on the particular case.

44

It was argued by Mr Costello that the town planning merits of this proposal outweighed the development’s obvious discrepancies with the provisions of the MU1 Zone. The drawings and description of the building showed that it was one with a high standard of finish. There was no evidence to the contrary. Mr Danvers described the proposal as being a building of architectural merit designed to be compatible with its two storey neighbours. I have carefully considered his opinion, and the opinion of Mr Weidenhofer who had a contrary view, and also had the view that it was not compatible with the buildings to its north.

45

Mr Brunning was of the view that "the quality of the design more than adequately compensates for the greater height and bulk such that it would complement the streetscape character". Mr Rolfe thought otherwise. On balance I am of the view that the building’s merits do not outweigh its detrimental effects on the scale and character of the neighbourhood. The proposal neither sufficiently satisfies the provisions of the MU1 Zone of the Development Plan nor would it contribute positively to the locality as it currently exists.

Other Issues

46	Much evidence was given at the hearing and addressed in the expert witnesses’ reports as to other attributes or shortcomings of the proposal, including:
•	adequacy of open space for the residences;
•	acoustic privacy of the residences;
•	adequacy of the parking arrangements and their management;
•	adequacy of the provisions for storage and collection of rubbish;
•	adequacy of general storage and bike storage;
•	access to the basement car park;
•	screening of the car park; and
•	landscaping.

47	These are all matters I regard as being of secondary importance. While they would all be relevant if the appeal were to be allowed, they do not need to be determined if the appeal is to be rejected. For the sake of completeness, they will each be dealt with, but only briefly:
•	Adequacy of open space for the residences: the lack of acoustic and visual privacy on the balconies facing King William Road was questioned.

•	Acoustic privacy of the residences: descriptions of the proposal speak of double glazing to the windows of the dwellings, which would give a measure of protection if all the windows were to be protected, but not of course, if they were to be opened.

•

Adequacy of the parking arrangements and their management: Mr Weaver had doubts about the desirability of the arrangement of parking in the basement but also described it as adequate. The way in which basement and at-grade parking was to be managed to alleviate or prevent demand for parking between the uses remained unclear. I accept the evidence of Ms Lovell that additional parking was likely to be available on King William Road which might make up for the theoretical shortfall of parking on site.

•	Adequacy of the provisions for storage and collection of rubbish: it seemed unlikely the provision for this function had been sufficiently thought through. Ms Lovell suggested some improvements but not in adequate detail to provide a clear solution as to its disposition or management.

•	Adequacy of general storage and bike storage: again, there was insufficient detail to make a definitive response.

•	Access to the basement car park: Ms Lovell questioned the height of the end of the driveway down to the basement car park. Otherwise the arrangement was agreed to be satisfactory.

•	Screening of the car park: details were not shown on the drawings but evidence was given that the rear fence was to be 2.2 metres high. No details were given of any screen between the car park and Grace Street. Conditions could deal with these matters.

•	Landscaping was indicated in relation to the Pepper tree, the paving around it and planting adjacent to the rear fence. No details were given and Mr Brunning described it as inadequate. Again, conditions could address that.

48	In general, the lack of resolution of most of these more detailed matters does not give me confidence that the proposal is of sufficient merit to outweigh its planning disadvantages.

Conclusion

49

I conclude that the ground floor of the proposal contains uses which are not the most desired in the MU1 Zone but are allowable. In the way they are configured, the two upper floors of residential development are not a use which is appropriate in the Mixed Use 1 Zone. I further conclude that the height, the area and the bulk of the building is excessive in this location and exceeds that envisaged in the Mixed Use 1 Zone of the Development Plan. The character of the building is not sympathetic to the adjacent residential development or to the villas which are now offices adjacent to the proposed building and opposite to it. Reasons for these conclusions have been outlined above.

50

The appeal is dismissed. There will be an order accordingly.