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ARETZIS v CITY OF UNLEY [2008] SAERDC 29 (8 April 2008)

Last Updated: 10 April 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.

ARETZIS v CITY OF UNLEY

[2008] SAERDC 29

Judgment of Commissioner Hamnett

8 April 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application to construct an extension to a garage in Unley Park - Residential A560 Zone - no issues of vehicle or pedestrian safety - proposal at odds with Development Plan provisions relating to the width, height and front setback of garages - likely as a consequence to dominate the streetscape and diminish visual amenity to an unacceptable extent - appeal dismissed.

Development Act 1993, referred to.

Dal Pra v Corporation of the City of Happy Valley [1995] EDLR 107; South Australian Housing Trust v Development Assessment Commission & Anor [1994] 63 SASR 35; Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93; Fimmell v District Council of Mount Gambier (1988) 143 LSJS 429; Town of Gawler v Impact Investment Corporation [2007] SASC 356, considered.

ARETZIS v CITY OF UNLEY
[2008] SAERDC 29

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is an appeal against a decision by the City of Unley ("the Council") to refuse an application from D and S Aretzis ("the Appellants") to construct an extension to an existing garage at their property at 79 Northgate Street, Unley Park. The Appellants were notified by letter dated 14 November 2007 that the application had been refused on the grounds that it was contrary to certain provisions of the Unley (City) Development Plan - specifically Council-Wide Objectives 5 and 32 and Council-Wide Principles of Development Control 65, 76 and 87. No resolution was achieved at a compulsory conference of the parties and the matter proceeded to a hearing.
2 The Appellants were represented by Mr J McElhinney, of counsel. Mr J Billington, of counsel, appeared for the Council. The Court heard from Mr D Aretzis on behalf of the Appellants. Expert evidence was provided by two experienced and qualified town planners, Mr J Smith and Mr K Barnes, and by Mr G Giannakodakis, a traffic engineer. The Court conducted a view of the subject land and its locality immediately prior to the hearing.

The Subject Land

3 The subject land is described in Certificate of Title Register Book, Volume 5349, Folio 257 as Allotment 35, Filed Plan 11719 in the area named Unley Park, Hundred of Adelaide. It is situated at 79 Northgate Street, Unley Park at the south-western corner of the junction between Northgate Street and Elm Street. The allotment is rectangular in shape with a frontage of 42.67 metres to Northgate Street and a secondary frontage of 51.81 metres to Elm Street. The total area of the allotment is 2,463.98 square metres. The allotment is level and is occupied by a large detached dwelling, a swimming pool and a tennis court. There is a small garden shed and a bathroom associated with the swimming pool in the south-west corner of the subject land.
4 The dwelling is single-storey in height, apart from a two-storey tower close to its north-east corner. Gardens on the allotment are well-landscaped and there are several mature plants, including a significant tree which is listed in Table Un/7 of the relevant development plan as a ‘Sweet Bay’ (Laurus Nobilis).
5 The dwelling is set back some 18 metres from Northgate Street. The existing 3-car garage is towards the rear of the Elm Street frontage. Elm Street is a local road with a carriageway width of about 8 metres and 1.8 metre wide footpaths on both sides of the road. The dwelling and garage are both of sandstone construction. The garage has an overall width of 9.22 metres and is set back 4.95 metres from the Elm Street boundary. The garage has a depth of 6.4 metres, walls which are 4 metres high and a corrugated iron roof with a double gable. Apart from the driveway area in front of the garage, the length of the Elm Street boundary is defined by a timber fence set on top of a masonry base. The end columns of the fence, adjacent to each side of the driveway, are about 600mm square and the fence itself is set back about 125mm from the face of the columns.

The Locality

6 Mr Barnes defined the locality as extending south along Elm Street as far as Ashleigh Grove and including the rear of the dwelling at 4 Elm Street, on the corner of Cedar Avenue. To the north it included the substantial dwellings on the north side of Northgate Street at numbers 76, 78 and 80 Northgate Street. To the west his locality included the neighbouring dwelling at 81 Northgate Street and to the east the dwelling at 77 Northgate Street, on the opposite corner of Northgate and Elm Streets. 76 and 81 Northgate Street are Local Heritage Places. Mr Barnes summarised the principal elements of the character of the locality as:

• the many mature and attractive street trees:
• the grand dwellings and spacious, well-landscaped grounds of the properties fronting Northgate Street:
• relatively consistent setbacks with few buildings built on or near the allotment boundaries:
• a more compact built-form on Elm Street than that found on Northgate Street.

7 Mr Barnes noted that dwellings fronting Elm Street are typically more modest than those on Northgate Street and include two groups of single-storey residential flat buildings, comprising 6 units in total, located to the rear of the subject land at 2A and 2B Elm Street. According to Mr Barnes these dwellings are set back approximately 7 metres from Elm Street and this setback is typical of the street, although he noted some exceptions to this. In particular, a dwelling under construction at 2 Elm Street is set back about 5 metres and there is a verandah at 1 Elm Street which has supporting structures that are set back approximately 1 metre or less from Elm Street. This latter property also has a solid masonry wall built on the Elm Street boundary which ranges in height from 2 to 2.2 metres. Mr Barnes also drew attention to number 4 Elm Street, the dwelling on the southern corner of Cedar Avenue and Elm Street, where a substantial garage is currently under construction on the Cedar Avenue boundary. Mr Barnes suggested that this garage was inappropriate and visually dominated the adjoining dwelling in terms of height and setbacks and represented an undesirable visual intrusion into the Cedar Avenue streetscape.
8 Mr Barnes stated that he had defined his locality on the basis of properties visible from, or with a view to, the subject land. Mr Smith explained that he had also based his locality mainly on the likely visibility of the proposed garage extension from a number of different viewing points. However, his locality was rather smaller than that of Mr Barnes, being confined primarily to Elm Street as far south as Cedar Avenue and including only a small portion of Northgate Street around the junction with Elm Street. Mr Smith also noted the buildings at 1, 2A and 2B, 2 and 4 Elm Street identified by Mr Barnes and indicated, in addition, an open pergola structure at 13 Elm Street with supporting columns located about 1.5 metres from the street boundary and with rafters projecting to within 600mm of the boundary. Mr Smith characterised the locality generally as one of high amenity and noted that "solid fencing and vegetation are the most dominant elements and these frame and define the street and impart its predominant character".
9 The two planners were in broad agreement about the principal elements of the character of the locality. I agree that the key issue in defining the locality is the visibility of the proposed building, primarily from Elm Street and from the immediate vicinity of the junction of Elm Street and Northgate Street. I prefer Mr Smith’s somewhat smaller locality and find Mr Barnes’ locality boundary to be rather too generously drawn. Nothing much of significance follows from this but I accept Mr Smith’s opinion that the proposed development is unlikely to be visible to any significant extent from the Local Heritage Places noted by Mr Barnes in Northgate Street.

The Proposal

10 The development proposal which is the subject of this appeal is described in a set of three plans and elevations (Exhibit A1) prepared by "Built Impressions" and last amended on 28 November 2007. The application refused by the Council included both the extension of the garage and the erection of a new carport. However, the Court was informed that the carport no longer formed part of the proposed development.
11 The plans show an extension of the existing garage for a distance of 4.45 metres to the east. This will make the total internal length of the garage 10.35 metres. The width of the garage will be unchanged at 9.22 metres. The addition to the garage will have a floor area of 41.03 square metres, making the total floor area of the garage just over 100 square metres. The front of the extended garage will be set back 500mm from the Elm Street boundary. It is proposed to construct the garage extension from sandstone to match the existing garage. The roof of the proposed extension will be flat and set behind a parapet. The wall height to the top of the parapet will be 4 metres. The three roller doors on the existing garage will be moved forward to become the doors of the extended garage. The front wall of the extended garage will abut the existing columns at each side of the driveway. While this is not shown on the plans, the Court was told that the intention was also to construct a small gate in the front fence immediately to the south of the garage to provide access to the area on the southern side of the dwelling. The setback of the proposed garage extension from the southern boundary will be 4.815 metres.

Development Plan Provisions

12 The subject land is located in the Residential A560 Zone of the Unley (City) Development Plan, as consolidated on 11 May 2006. The subject land within this zone is shown on Map Un/08.
13 Relevant extracts from the zone provisions are as follows:

Desired Character
The zone will be conserved as a high amenity lower density living area. It is intended to continue as an established residential area containing mainly single-storey detached dwellings on individual allotments.
Housing Types
Development will complement the form, appearance and construction materials of the many attractive residential streetscapes in the Zone. These range from bungalow style development in Millswood to graceful Victorian villas in Malvern, Hyde Park, Unley Park and surrounding areas. Roof forms, wall heights, front set-backs and side set-backs and external materials of surrounding existing housing should be reflected in new development....
Streetscape
The mature age and generous allotment sizes of various subdivisions within the Residential A560 Zone has ensured a preponderance of mature trees comprising remnant native vegetation and mature exotic species. Street reserve planting has generally complemented the species in private gardens. This attractive living environment where buildings are enclosed by the surrounding landscape should be maintained and enhanced.
Zone Objectives
Objective 1: A zone primarily accommodating detached dwellings on individual allotments.
Objective 2: Preservation of the existing residential character, provided by the preponderance of detached dwellings, uniform set-backs and a high standard of landscaping.
...
Principles of Development Control
...
6. Those kinds of development listed in Table Un/5, together with the following kinds of development) ...are complying in the Residential A560 Zone, subject to the conditions prescribed in Table Un/1
...
Garage attached to an existing dwelling.
...

14 Table Un/1 includes a range of criteria for garages attached to dwellings which address factors such as floor area, minimum dimensions and site coverage. A building setback of 8 metres from a street frontage is also required. It is clear that the proposed development does not meet several of these requirements for complying development and needs therefore to be assessed on its merits against all relevant provisions of the Development Plan.
15 In addition to the provisions relating to the Residential A560 Zone referred to above, Council-Wide Objective 5 is relevant to this matter:

Council-Wide Objective 5:
The amenity of localities not impaired by the appearance of land, buildings and objects
A 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/her surroundings, attention must be given to the aesthetic qualities of both natural and constructed features. The design of individual buildings should be of high standard and related to adjacent buildings. ...

16 There are also some Council-Wide Principles of Development Control of relevance. In several cases these principles are expressed in the form of "Performance Criteria", accompanied, where appropriate, by one or more "Design Techniques". The Development Plan explains these terms at p.22 as follows. A Performance Criterion

...provides qualitative guidance for the design of new development and expresses the essential intent of the principle.

17 A Design Technique is

...provided as an example of a method or methods of meeting a particular Performance Criterion, setting the standards or measurements to be achieved. While a Design Technique provides a carefully considered solution, it is not the only possible way of achieving the associated Performance Criterion. If a solution other than those reflected in the Design Technique is utilised to meet the relevant Performance Criterion, the standards reflected in the Design Technique should be used as a guide to the level, quality or standards to be achieved. In all cases...emphasis should be placed on satisfying the relevant Performance Criteria.

Council-Wide Principles of Development Control
3. New housing and other urban development should create a safe, convenient and pleasant environment in which to live.
...
12. All development should relate in terms of its setting, height, scale and bulk to that appropriate for development in the subject zone and should also be complementary with existing surrounding development in the locality, in particular adjoining residential development.
13. Materials, colours and finishes used in the construction of a development should be chosen to complement those of surrounding development
65. The appearance of buildings and land should not detract from the visual amenity and built form character of neighbouring property and from the desired future character of the locality having particular regard to:
(a) building mass and proportion (particularly where two or three storey development is proposed adjacent respectively to single or two storey development);
(b) the manner in which buildings address public streets;
(c) external materials, patterns, textures and decorative elements;
(d) ground floor height above natural ground level;
(e) roof form and pitch;
(f) façade articulation and detailing including window and door proportions;
(g) verandahs, eaves and parapets;
(h) landscape character;
(i) driveway crossovers, fence style and alignment; and
(j) height of external walls
(Figure 1 which follows Principle 65 provides illustrative examples of appropriate built form principles)
...
66. Performance Criteria
Residential development should:
...
(e) protect trees from significant root system damage
66.2 Design Technique
In relation to PC 66(b) and (e), buildings and structures requiring footings are not located beneath the canopy of the tree
...
71. Performance Criteria
Garages and carports should:
(a) be of a width that is minimised relative to the width of the frontage;
(b) have a roof form and pitch, scale, building materials and detailing that do not detract from the character of the associated or adjoining dwellings (refer Figure 4);
(c) not visually dominate the street elevation of the associated or adjoining dwellings; and
(d) where located in proximity to side boundaries, have a roof form which articulates the garage/carport from the roof form of the associated dwelling and reduces the visual impact on adjacent dwellings (refer Figure 5).
71.1 Design Technique
In relation to PC 71(a), the width (including the total width of any support structure) of a carport or garage facing a public street (other than a laneway) is a maximum of 6.5m or 50% of the allotment width measured at the alignment of the main face of the associated dwelling, whichever is less.
...
76. Performance Criteria
Garages and carports located to the side of a dwelling and facing a public street frontage should:
(a) not diminish the attractiveness of the streetscape;
(b) not dominate presentation of the associated or adjacent dwelling to the street (refer Figure 12);
(c) provide for adequate on-site parking;
(d) not adversely impact on the amenity of neighbours;
(e) not adversely impact on the safety of adjacent road users; and
(f) provide for adequate sight-lines for reversing manoeuvres onto the street.
76.5 Design Technique
When associated with an existing dwelling and where an adjacent (or potential adjacent) dwelling addresses the street as its primary frontage, free-standing domestic outbuildings and garages and carports attached to a dwelling are set back in accordance with the following:
(a) for structures having a width (presenting to the street) of no more than 6.5 metres, having a wall height no more than 2.8 metres or a total height no more than 4.5 metres – at least half the front boundary set-back of the adjacent dwelling less the set-back distance of the structure from the common boundary, provided the set-back distance from the secondary street frontage is at least 1 metre (refer Figure 14); or
(b) for structures having any dimension exceeding those specified for structures in (a) above – the same set-back from the secondary street frontage as specified in (a) above plus a distance equal to the total of the additional width, wall height and total height of the structure.

18 Also of some relevance are Council-Wide Objectives 1, 9, 10, 19, 20, 22, 31, 32 and 36; and Council-Wide Principles of Development Control 1, 2, 15, 54, 56, 57, 72, 82, 87, 90, 104 and 106.

The Evidence
The Intended Use of the Garage Extension

19 Mr Aretzis, on behalf of the Appellants, gave evidence about the intended use of the proposed garage extension. Mr Aretzis occupies the property at 79 Northgate Street with his wife and two children, aged 6 and 4. There are four vehicles belonging to the Aretzis family, which are currently kept on the property. Three vehicles can be parked in the existing garage and the fourth vehicle is parked on the paved driveway area between the garage and the street. Visitors, including tradespersons and a gardener, also park on the paved area from time to time. In response to a question from Mr Billington, Mr Aretzis indicated that there was usually ample on-street parking space available on Elm Street.
20 In seeking to create additional secure garage space Mr Aretzis is looking ahead to the time when his children will be old enough to have cars. He also thinks it possible that his parents will be accommodated in the dwelling at 79 Northgate Street when they become unable to live independently and that may also add to the number of vehicles to be garaged at the property. Furthermore, Mr Aretzis owns an unspecified number of "classic cars" and would like the opportunity to store some of these in the extended garage.

Safety Issues

21 Mr Giannakodakis gave evidence as an expert traffic engineer, principally on the question of whether traffic reversing out of the proposed garage extension would compromise vehicle and pedestrian safety in Elm Street. His assessment was based largely on the requirements of Australian/New Zealand Standard AS/NZS 2890.1:2004 relating to "Parking Facilities: Part 1: Off-street car parking". Mr Giannakodakis provided evidence that Elm Street is a local street with very low traffic volumes (vehicular and pedestrian) and very low-recorded average speed for vehicles. In his opinion the proposed garage extension will not create any unacceptable risks to pedestrians or to vehicles in Elm Street. No expert evidence was called to challenge Mr Giannakodakis’ conclusions and I accept his evidence on issues of vehicle and pedestrian safety.
22 The standard referred to in the preceding paragraph, AS/NZS 2890.1:2004, establishes parking spaces and manoeuvring areas in relation to what are described as an 85^th percentile vehicle (B85) and a 99.8^th percentile vehicle (B99). The B85 vehicle has overall dimensions of 4910 x 1870mm. The larger B99 vehicle has overall dimensions of 5200 x 1940mm. During cross-examination, Mr Billington suggested that, given the total internal length of the extended garage of 10.35 metres, and the total length of two B85 vehicles of 9.82 metres, there would be only about 520mm of space remaining to be distributed between the front of the front-most vehicle, the rear of the rear-most vehicle and between the two vehicles when two B85 vehicles were parked end to end in the extended garage. Mr Giannakodakis agreed that this would be "tight".
23 Mr Billington put the further proposition that, overall, there would be less flexibility to accommodate vehicles on the property once the garage extension was completed than at present and that this could well result in increased on-street parking. Mr Giannakodakis agreed that this was likely to be the case.

The Evidence of the Planning Experts

24 Mr Smith was of the view that the proposed garage extension would reinforce the character of the subject land as the site of a substantial dwelling on a large allotment. The existing fencing, together with the front of the extended garage, would appear as a "uniform streetscape element", in the same manner as had been achieved, in his view, by the boundary wall at 1 Elm Street. The use of similar materials to those used in the existing buildings on the subject land would comply with the requirements of Council-Wide Principle 13 in his opinion.
25 Mr Smith saw the most relevant provisions of the Development Plan in this case as those relating to the impact that the proposed garage extension would have on the visual amenity and streetscape of the locality. He saw the proposed development as a relatively minor extension to the total floor area of the dwelling but one, which would nevertheless "... reinforce the characteristic this building has as a substantial dwelling set on a large land parcel". Notwithstanding this effect of reinforcing or emphasizing the substantial nature of the dwelling on the subject land, however, Mr Smith was of the opinion that the mature vegetation along Elm Street would serve to limit the visual impact of the proposed development. Mr Smith noted that the proposal did not accord with Design Technique 71.1 which suggests a maximum width of 6.5 metres for any garage facing a public street but suggested that a width of some 9.3 metres was reasonable when considered in relation to the subject land’s overall frontage of 51.8 metres to Elm Street.
26 With regard to the form of the proposed garage extension, Mr Smith suggested that a flat roof concealed from the street behind a parapet was a "widely-used technique to extend older buildings". In this case it would provide a transition from the gabled form of the existing garage to the street. In his opinion the extension would not dominate the neighbouring dwelling to the south. (The Court noted that, prior to determining the application, the Council had received a representation from the owner of Units 1 and 2A Elm Street to the south expressing concern at the possible impact of the carport originally proposed, but that this representation had subsequently been withdrawn). Mr Smith also emphasized the existence of substantial buildings or structures in the immediate locality, which were set at or close to the street boundary – the wall at number 1 Elm Street and the garage on the Cedar Avenue frontage of 4 Elm Street, in particular.
27 Mr Barnes was of the view that the proposed development was at odds with the intent of the Desired Character statement which seeks developments complementing the "...many attractive residential streetscapes in the Zone". The flat roof proposed was not, in his opinion, in accord with Council-Wide Principle 65 which includes, at Figure 1, an illustration of "typical Unley roof forms" and which, according to Mr Barnes, clearly discourages the use of flat roofs. In his opinion the establishment of a 4 metre high, solid-walled building with a flat roof sited 500mm from the Elm Street boundary would certainly not complement the form and appearance of the residential streetscape. He acknowledged the existence of the developments at 1 and 4 Elm Street but argued that, in the case of 1 Elm Street, the wall there was appreciably smaller in scale than the proposed garage extension. With regard to the garage under construction at 4 Cedar Avenue, it was Mr Barnes’ opinion that this represented an undesirable intrusion into the streetscape of Cedar Avenue and that it was not an appropriate precedent to be followed on the subject land.
28 Mr Barnes further argued that the proposal would not satisfy Council-Wide Principle 71 which requires garages to be "of a width that is minimized relative to the width of the frontage" or the related Design Technique 71.1 which seeks a maximum width for a garage of 6.5 metres or 50% of the allotment width (whichever is less). Unlike Mr Smith, he could see no planning reasons in this case for approving a garage extension which was wider by some 40% than the 6.5 metres indicated in Design Technique 71.1.
29 Principle 76 requires that garages and carports located to the side of a dwelling and facing a public street frontage should:

(a) not diminish the attractiveness of the streetscape;

(b) not dominate presentation of the associated or adjacent dwelling to the street.
...

30 Mr Barnes argued that the siting, width and height of the proposed development were at odds with this Principle. He also argued that it would be inconsistent with the typical setbacks in Elm Street, which he had assessed as being generally around 7 metres from the street frontage, and it would conflict, therefore, with the desire of Zone Objective 2 to preserve "uniform setbacks".
31 Design Technique 76.5 relates to Principle 76 and provides guidance in establishing an appropriate setback to a secondary street frontage. It reads as follows:

When associated with an existing dwelling and where an adjacent (or potential adjacent) dwelling addresses the street as its primary frontage, free-standing domestic outbuildings and garages and carports attached to a dwelling are set back in accordance with the following:
(a) for structures having a width (presenting to the street) of no more than 6.5 metres, having a wall height no more than 2.8 metres or a total height no more than 4.5 metres – at least half the front boundary set-back of the adjacent dwelling less the set-back distance of the structure from the common boundary, provided the set-back distance from the secondary street frontage is at least 1 metre (refer Figure 14); or
(b) for structures having any dimension exceeding those specified for structures in (a) above – the same set-back from the secondary street frontage as specified in (a) above plus a distance equal to the total of the additional width, wall height and total height of the structure.

Figure 14 provides a formula for calculating the appropriate setback in relation to this Design Technique as follows:

a = x/2 – common boundary set-back
where
a is the required setback of a garage or carport from a secondary street frontage
and
x is the front boundary set back of the adjacent dwelling

32 There was some disagreement between the planning witnesses about how this formula was to be applied. Mr Barnes provided a supplementary document (Exhibit R3) which set out his calculations as follows:

Given that the proposed garage will be greater than 6.5m in width and will have a wall height greater than 2.8m, part (b) of the design technique applies. Part (b) states that the setback should be determined by first applying part (a) and then adding on the amount of additional width and additional wall height.
Part (a) states that the garage should be setback half of the setback of the adjacent dwelling (3.5m) minus the setback of the garage from the common boundary (4.815m). This would equate to a setback of – 1.315m. Given that such a setback is clearly unachievable, part (a) provides clarification by stating that a minimum setback of 1m should be attained. Therefore, in order to satisfy part (a) of Design Technique 76.5, the garage should be setback a minimum of 1m from the Elm Street (secondary) frontage.
Part (b) advises that the setback should be the sum of part(a) plus the additional width beyond 6.5m and additional wall height above 2.8m. Given that the additional width of the garage is 2.72m (9.22m minus 6.5m) and the additional height of the garage is 1.2m (4m minus 2.8m), the actual setback required to satisfy part (b) is 4.92m.

33 Mr Smith disagreed with Mr Barnes’ opinions and calculations with regard to the required setback. His first argument was that a garage of 6.5 metres wide required a minimum setback of 1 metre from the street boundary. He acknowledged that the proposed garage was set back only 500mm and that it was some 2.7 metres wider than 6.5 metres but these matters were outweighed, in his opinion, by the contribution which the garage would make to reinforcing "... the character of the development site as a substantial dwelling on a large allotment" and by creating, with the existing property fence, the "uniform streetscape element" referred to earlier.
34 With regard to the application of the formula set out in Design Technique 76.5, Mr Smith suggested that Mr Barnes had interpreted this incorrectly. In his view it was inappropriate to add the 1 metre minimum setback specified in part (a) of Design Technique 76.5 to the additional setback distances required as a result of the proposed development exceeding the height and width criteria set out in the design technique. By Mr Smith’s calculation the required setback under Design Technique 76.5 would be around 2.9 metres.
35 I prefer Mr Barnes’ approach to the application of the formula set out as part of Design Technique 76.5 but I acknowledge that Design Techniques are "... not the only possible way of achieving the associated Performance Criterion" and that "... In all cases ... emphasis should be placed on satisfying the relevant Performance Criteria". I agree with Mr Barnes that the relevant performance criteria here are those set out in Principle of Development Control 76 and, in particular, parts (a) and (b) which require that:

... garages and carports located to the side of a dwelling and facing a public street frontage should:
(a) not diminish the attractiveness of the streetscape;
(b) not dominate presentation of the associated or adjacent dwelling to the street.

36 Mr Barnes identified some possible impacts of the proposed development on a street tree located just north of the existing driveway and suggested that the garage extension would not comply with Design Technique 66.2 as part of it would sit beneath the canopy of this tree. He also questioned the adequacy of arrangements for dealing with stormwater run-off generated by the proposed development. Mr Smith did not regard these as matters of substance and was of the view that the protection of this tree and the proper disposal of stormwater were matters, which could readily be dealt with by conditions attached to a development consent. I agree with Mr Smith on these matters.

Conclusion

37 As I have indicated earlier, I accept the evidence of Mr Giannakodakis on issues of vehicle and pedestrian safety. I also accept Mr Smith’s evidence that there are no provisions of the Development Plan relating to heritage, stormwater management or the impacts on street trees, which raise concerns of any substance in relation to this development. I accept that the mature vegetation in Elm Street will limit the visibility of the proposed development to some extent.
38 Furthermore, I do not think, despite the illustrative examples provided in Figure 1 of Council-Wide Principle 65, that, in this context, the proposed flat roof behind a parapet will sit uncomfortably in relation to the existing gabled garage roof or detract from the visual amenity and built form character of the street and the locality.
39 However, I accept the evidence of Mr Barnes in some other important respects. The existing garage is already at or close to the minimum setback distance of 4.92 metres required by Design Technique 76.5 based on Mr Barnes’ calculation, which, as I indicated earlier, I prefer to Mr Smith’s calculation. Even if I am wrong about this and accept Mr Smith’s calculation, the minimum setback acceptable under Design Technique 76.5 would be 2.9 metres. The proposed garage extension, by contrast, is to be setback only 500mm from the street. It will be 9.22 metres wide, appreciably wider than the 6.5 metres indicated in Design Technique 71.1 and 4 metres high. Despite Mr Smith’s arguments to the contrary, I am of the opinion that this will represent a significant and unwelcome visual intrusion into the streetscape of Elm Street.
40 I do not accept the argument that the existence of recent developments in the locality which are also in apparent breach of a number of provisions of the Development Plan, particularly with regard to building height and setback, provide a justification for approving the proposed development. In support of my conclusion on this point, I refer to this Court’s decision in Dal Pra v Corporation of the City of Happy Valley [1995] EDLR 107.
41 Mr McElhinney, in his closing submission, suggested that the Council’s case against the proposed development relied too heavily on its failure to comply with certain Performance Criteria and Design Techniques, and Design Technique 76.5 in particular. He argued that this was an inappropriate approach to the assessment of a development proposal and cited a number of well-known authorities in support of his argument, including South Australian Housing Trust v Development Assessment Commission and Anor [1994] 63 SASR where the Supreme Court confirmed that no principle of a development plan is mandatory. King CJ concluded at p.37 of that judgment that "(t)he standards specified in the principle are the goal to be aimed at and the planning authority is to be guided by those standards in considering an application for consent".
42 Mr McElhinney also referred to the judgment of the Supreme Court in Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93. One of the issues, which arose in that case, was the refusal by the respondent Council to approve plans for a number of dwellings on the grounds that, amongst other things, they involved a departure from the prescribed "setback" distance from a road. The Council’s position on this matter was upheld on appeal by the Planning Appeals Board. In his judgment Jacobs J observed at p.105 that:

As to the "set-back" appeal, the majority of the Board said that ... it could find nothing to suggest that any grounds exist to justify the respondent Corporation granting dispensation from the requirements of the set-back regulations. In other words, the Board was again prepared to treat non-compliance with the set-back regulations as fatal to the whole proposal, whereas it was only one of the factors to be weighed.

43 Mr McElhinney saw some relationship between the inflexible approach to setback requirements which was criticized in the above extract from Hickinbotham Blue Gum and what he saw as the Council’s over-reliance in the present case on the setback provisions of Principle 76 and its related Design Technique. Mr McElhinney argued that there was substantial case law which confirmed that the Development Plan was to be seen as a flexible and advisory planning policy document rather than as a collection of mandatory principles and provisions.
44 Mr Billington, in his submissions, referred to the judgment of the Supreme Court in Fimmell v District Council of Mount Gambier (1988) LSJS 429 where, at p.434, Jacobs J observed that:

Principle 24 is directory and persuasive, and one would normally expect a planning authority, having proper regard to the Plan, to respect what it says unless, as a matter of planning judgment, there is some good reason to justify a different conclusion.

45 Mr Billington also referred to the judgment of the Full Court of the Supreme Court in Town of Gawler v Impact Investment Corporation [2007] SASC 356 on the matter of whether it was permissible for a planning authority to determine that a development, although contrary to a very specifically expressed principle, nonetheless merited consent. At para 80 Bleby J had the following to say:

...(I)t is well-established that a plainly applicable principle should only be departed from for good reason. In considering most principles of development control a careful planning judgment will need to be exercised as to the degree of compliance with that principle or group of principles. But there will always be a question as to the weight to be given to clear expressions of policy ... evident in the objectives and principles of a Development Plan.

46 At para 81 Bleby J went on to suggest a set of 10 circumstances under which a relevant Planning Authority or this Court might be justified in departing from a clearly expressed policy or principle. These were as follows:

1. The language of the principle or principles concerned – whether it is direct or contemplates some flexibility in approach;
2. Whether the relevant principle is in conflict with some other applicable planning principle. That is likely to happen only rarely, in which case the more specific principle may displace the more generally expressed principle;
3. The evident purpose and objective of the policy expressed in the principle or principles concerned;
4. The significance of the policy to this particular Development. The clearer the policy in its application to a particular development, the more compelling the reasons for departing from the policy will need to be;
5. Where the policy contemplates possible degrees of compliance, the extent of the Development’s compliance with the policy;
6. Consistency of the Development with other objectives and purposes of the Zone;
7. Whether there is something unusual about the Development or the land on which it is to take place which makes the policy inapplicable or inappropriate;
8. Whether other events have happened since the Development Plan was adopted which make the policy redundant, either generally or in respect of this particular development;
9. The probable effect of non-compliance with the policy on the planning objectives of the Zone; and
10. Whether non-compliance with the policy in this case is likely to encourage other non-complying developments in the Zone.

47 In Mr Billington’s view, none of these 10 circumstances was applicable to the current matter and he argued that there was no sound planning reason, on the evidence before the Court, for disregarding the clearly expressed intent of the Council-Wide Principles identified by Mr Barnes as of particular relevance to this matter and their related design techniques.
48 I have given careful consideration to these submissions by counsel. I have also carefully considered the evidence presented, the provisions of the Development Plan that I have identified as relevant and my observations on the view. In my judgment, on balance, the proposed development does not merit approval.
49 In reaching this decision I have not concluded that the failure of the proposed garage extension to comply with the specified width, height and setback requirements set out in the Development Plan provides a mandatory basis for refusal. However, I have concluded that the failure of the proposal to comply with each of these requirements by a substantial amount is decisive in a matter which, having regard to all relevant provisions of the Development Plan, is otherwise finely-balanced.
50 The proposed development fails to comply with Council-Wide Principles 71 and 76 to a significant extent. The existing garage is already substantially wider, at 9.22 metres, than the 6.5 metres set out in Principle 71 and Design Technique 71.1. This width will be maintained in the proposed extension. The extension will be 4 metres high rather than the 2.8 metres set out in Design Technique 76.5. And the front of the proposed extension will be very close to the street boundary – the existing garage is set back an appropriate distance in my view, but the proposed extension will be set back only 500mm from the street boundary. The evidence of the expert planners is that, to comply with Design Technique 76.5, it should be set back at least 2.9 metres and probably 4.92 metres. The overall effect will be a to create a development of substantial width, height and bulk very close to the street boundary and this cannot, in my judgment, fail to have a visually dominating effect on the streetscape which will diminish the visual amenity of Elm Street unacceptably.
51 I have therefore concluded that the decision of the Council to refuse the application should be upheld and the appeal dismissed. There will be an order to this effect.

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3	The subject land is described in Certificate of Title Register Book, Volume 5349, Folio 257 as Allotment 35, Filed Plan 11719 in the area named Unley Park, Hundred of Adelaide. It is situated at 79 Northgate Street, Unley Park at the south-western corner of the junction between Northgate Street and Elm Street. The allotment is rectangular in shape with a frontage of 42.67 metres to Northgate Street and a secondary frontage of 51.81 metres to Elm Street. The total area of the allotment is 2,463.98 square metres. The allotment is level and is occupied by a large detached dwelling, a swimming pool and a tennis court. There is a small garden shed and a bathroom associated with the swimming pool in the south-west corner of the subject land.
4	The dwelling is single-storey in height, apart from a two-storey tower close to its north-east corner. Gardens on the allotment are well-landscaped and there are several mature plants, including a significant tree which is listed in Table Un/7 of the relevant development plan as a ‘Sweet Bay’ (Laurus Nobilis).
5	The dwelling is set back some 18 metres from Northgate Street. The existing 3-car garage is towards the rear of the Elm Street frontage. Elm Street is a local road with a carriageway width of about 8 metres and 1.8 metre wide footpaths on both sides of the road. The dwelling and garage are both of sandstone construction. The garage has an overall width of 9.22 metres and is set back 4.95 metres from the Elm Street boundary. The garage has a depth of 6.4 metres, walls which are 4 metres high and a corrugated iron roof with a double gable. Apart from the driveway area in front of the garage, the length of the Elm Street boundary is defined by a timber fence set on top of a masonry base. The end columns of the fence, adjacent to each side of the driveway, are about 600mm square and the fence itself is set back about 125mm from the face of the columns.

7	Mr Barnes noted that dwellings fronting Elm Street are typically more modest than those on Northgate Street and include two groups of single-storey residential flat buildings, comprising 6 units in total, located to the rear of the subject land at 2A and 2B Elm Street. According to Mr Barnes these dwellings are set back approximately 7 metres from Elm Street and this setback is typical of the street, although he noted some exceptions to this. In particular, a dwelling under construction at 2 Elm Street is set back about 5 metres and there is a verandah at 1 Elm Street which has supporting structures that are set back approximately 1 metre or less from Elm Street. This latter property also has a solid masonry wall built on the Elm Street boundary which ranges in height from 2 to 2.2 metres. Mr Barnes also drew attention to number 4 Elm Street, the dwelling on the southern corner of Cedar Avenue and Elm Street, where a substantial garage is currently under construction on the Cedar Avenue boundary. Mr Barnes suggested that this garage was inappropriate and visually dominated the adjoining dwelling in terms of height and setbacks and represented an undesirable visual intrusion into the Cedar Avenue streetscape.
8	Mr Barnes stated that he had defined his locality on the basis of properties visible from, or with a view to, the subject land. Mr Smith explained that he had also based his locality mainly on the likely visibility of the proposed garage extension from a number of different viewing points. However, his locality was rather smaller than that of Mr Barnes, being confined primarily to Elm Street as far south as Cedar Avenue and including only a small portion of Northgate Street around the junction with Elm Street. Mr Smith also noted the buildings at 1, 2A and 2B, 2 and 4 Elm Street identified by Mr Barnes and indicated, in addition, an open pergola structure at 13 Elm Street with supporting columns located about 1.5 metres from the street boundary and with rafters projecting to within 600mm of the boundary. Mr Smith characterised the locality generally as one of high amenity and noted that "solid fencing and vegetation are the most dominant elements and these frame and define the street and impart its predominant character".
9	The two planners were in broad agreement about the principal elements of the character of the locality. I agree that the key issue in defining the locality is the visibility of the proposed building, primarily from Elm Street and from the immediate vicinity of the junction of Elm Street and Northgate Street. I prefer Mr Smith’s somewhat smaller locality and find Mr Barnes’ locality boundary to be rather too generously drawn. Nothing much of significance follows from this but I accept Mr Smith’s opinion that the proposed development is unlikely to be visible to any significant extent from the Local Heritage Places noted by Mr Barnes in Northgate Street.

12	The subject land is located in the Residential A560 Zone of the Unley (City) Development Plan, as consolidated on 11 May 2006. The subject land within this zone is shown on Map Un/08.
13	Relevant extracts from the zone provisions are as follows:

21	Mr Giannakodakis gave evidence as an expert traffic engineer, principally on the question of whether traffic reversing out of the proposed garage extension would compromise vehicle and pedestrian safety in Elm Street. His assessment was based largely on the requirements of Australian/New Zealand Standard AS/NZS 2890.1:2004 relating to "Parking Facilities: Part 1: Off-street car parking". Mr Giannakodakis provided evidence that Elm Street is a local street with very low traffic volumes (vehicular and pedestrian) and very low-recorded average speed for vehicles. In his opinion the proposed garage extension will not create any unacceptable risks to pedestrians or to vehicles in Elm Street. No expert evidence was called to challenge Mr Giannakodakis’ conclusions and I accept his evidence on issues of vehicle and pedestrian safety.
22	The standard referred to in the preceding paragraph, AS/NZS 2890.1:2004, establishes parking spaces and manoeuvring areas in relation to what are described as an 85^th percentile vehicle (B85) and a 99.8^th percentile vehicle (B99). The B85 vehicle has overall dimensions of 4910 x 1870mm. The larger B99 vehicle has overall dimensions of 5200 x 1940mm. During cross-examination, Mr Billington suggested that, given the total internal length of the extended garage of 10.35 metres, and the total length of two B85 vehicles of 9.82 metres, there would be only about 520mm of space remaining to be distributed between the front of the front-most vehicle, the rear of the rear-most vehicle and between the two vehicles when two B85 vehicles were parked end to end in the extended garage. Mr Giannakodakis agreed that this would be "tight".
23	Mr Billington put the further proposition that, overall, there would be less flexibility to accommodate vehicles on the property once the garage extension was completed than at present and that this could well result in increased on-street parking. Mr Giannakodakis agreed that this was likely to be the case.

24	Mr Smith was of the view that the proposed garage extension would reinforce the character of the subject land as the site of a substantial dwelling on a large allotment. The existing fencing, together with the front of the extended garage, would appear as a "uniform streetscape element", in the same manner as had been achieved, in his view, by the boundary wall at 1 Elm Street. The use of similar materials to those used in the existing buildings on the subject land would comply with the requirements of Council-Wide Principle 13 in his opinion.
25	Mr Smith saw the most relevant provisions of the Development Plan in this case as those relating to the impact that the proposed garage extension would have on the visual amenity and streetscape of the locality. He saw the proposed development as a relatively minor extension to the total floor area of the dwelling but one, which would nevertheless "... reinforce the characteristic this building has as a substantial dwelling set on a large land parcel". Notwithstanding this effect of reinforcing or emphasizing the substantial nature of the dwelling on the subject land, however, Mr Smith was of the opinion that the mature vegetation along Elm Street would serve to limit the visual impact of the proposed development. Mr Smith noted that the proposal did not accord with Design Technique 71.1 which suggests a maximum width of 6.5 metres for any garage facing a public street but suggested that a width of some 9.3 metres was reasonable when considered in relation to the subject land’s overall frontage of 51.8 metres to Elm Street.
26	With regard to the form of the proposed garage extension, Mr Smith suggested that a flat roof concealed from the street behind a parapet was a "widely-used technique to extend older buildings". In this case it would provide a transition from the gabled form of the existing garage to the street. In his opinion the extension would not dominate the neighbouring dwelling to the south. (The Court noted that, prior to determining the application, the Council had received a representation from the owner of Units 1 and 2A Elm Street to the south expressing concern at the possible impact of the carport originally proposed, but that this representation had subsequently been withdrawn). Mr Smith also emphasized the existence of substantial buildings or structures in the immediate locality, which were set at or close to the street boundary – the wall at number 1 Elm Street and the garage on the Cedar Avenue frontage of 4 Elm Street, in particular.
27	Mr Barnes was of the view that the proposed development was at odds with the intent of the Desired Character statement which seeks developments complementing the "...many attractive residential streetscapes in the Zone". The flat roof proposed was not, in his opinion, in accord with Council-Wide Principle 65 which includes, at Figure 1, an illustration of "typical Unley roof forms" and which, according to Mr Barnes, clearly discourages the use of flat roofs. In his opinion the establishment of a 4 metre high, solid-walled building with a flat roof sited 500mm from the Elm Street boundary would certainly not complement the form and appearance of the residential streetscape. He acknowledged the existence of the developments at 1 and 4 Elm Street but argued that, in the case of 1 Elm Street, the wall there was appreciably smaller in scale than the proposed garage extension. With regard to the garage under construction at 4 Cedar Avenue, it was Mr Barnes’ opinion that this represented an undesirable intrusion into the streetscape of Cedar Avenue and that it was not an appropriate precedent to be followed on the subject land.
28	Mr Barnes further argued that the proposal would not satisfy Council-Wide Principle 71 which requires garages to be "of a width that is minimized relative to the width of the frontage" or the related Design Technique 71.1 which seeks a maximum width for a garage of 6.5 metres or 50% of the allotment width (whichever is less). Unlike Mr Smith, he could see no planning reasons in this case for approving a garage extension which was wider by some 40% than the 6.5 metres indicated in Design Technique 71.1.
29	Principle 76 requires that garages and carports located to the side of a dwelling and facing a public street frontage should:

30	Mr Barnes argued that the siting, width and height of the proposed development were at odds with this Principle. He also argued that it would be inconsistent with the typical setbacks in Elm Street, which he had assessed as being generally around 7 metres from the street frontage, and it would conflict, therefore, with the desire of Zone Objective 2 to preserve "uniform setbacks".
31	Design Technique 76.5 relates to Principle 76 and provides guidance in establishing an appropriate setback to a secondary street frontage. It reads as follows:

33	Mr Smith disagreed with Mr Barnes’ opinions and calculations with regard to the required setback. His first argument was that a garage of 6.5 metres wide required a minimum setback of 1 metre from the street boundary. He acknowledged that the proposed garage was set back only 500mm and that it was some 2.7 metres wider than 6.5 metres but these matters were outweighed, in his opinion, by the contribution which the garage would make to reinforcing "... the character of the development site as a substantial dwelling on a large allotment" and by creating, with the existing property fence, the "uniform streetscape element" referred to earlier.
34	With regard to the application of the formula set out in Design Technique 76.5, Mr Smith suggested that Mr Barnes had interpreted this incorrectly. In his view it was inappropriate to add the 1 metre minimum setback specified in part (a) of Design Technique 76.5 to the additional setback distances required as a result of the proposed development exceeding the height and width criteria set out in the design technique. By Mr Smith’s calculation the required setback under Design Technique 76.5 would be around 2.9 metres.
35	I prefer Mr Barnes’ approach to the application of the formula set out as part of Design Technique 76.5 but I acknowledge that Design Techniques are "... not the only possible way of achieving the associated Performance Criterion" and that "... In all cases ... emphasis should be placed on satisfying the relevant Performance Criteria". I agree with Mr Barnes that the relevant performance criteria here are those set out in Principle of Development Control 76 and, in particular, parts (a) and (b) which require that:

37	As I have indicated earlier, I accept the evidence of Mr Giannakodakis on issues of vehicle and pedestrian safety. I also accept Mr Smith’s evidence that there are no provisions of the Development Plan relating to heritage, stormwater management or the impacts on street trees, which raise concerns of any substance in relation to this development. I accept that the mature vegetation in Elm Street will limit the visibility of the proposed development to some extent.
38	Furthermore, I do not think, despite the illustrative examples provided in Figure 1 of Council-Wide Principle 65, that, in this context, the proposed flat roof behind a parapet will sit uncomfortably in relation to the existing gabled garage roof or detract from the visual amenity and built form character of the street and the locality.
39	However, I accept the evidence of Mr Barnes in some other important respects. The existing garage is already at or close to the minimum setback distance of 4.92 metres required by Design Technique 76.5 based on Mr Barnes’ calculation, which, as I indicated earlier, I prefer to Mr Smith’s calculation. Even if I am wrong about this and accept Mr Smith’s calculation, the minimum setback acceptable under Design Technique 76.5 would be 2.9 metres. The proposed garage extension, by contrast, is to be setback only 500mm from the street. It will be 9.22 metres wide, appreciably wider than the 6.5 metres indicated in Design Technique 71.1 and 4 metres high. Despite Mr Smith’s arguments to the contrary, I am of the opinion that this will represent a significant and unwelcome visual intrusion into the streetscape of Elm Street.
40	I do not accept the argument that the existence of recent developments in the locality which are also in apparent breach of a number of provisions of the Development Plan, particularly with regard to building height and setback, provide a justification for approving the proposed development. In support of my conclusion on this point, I refer to this Court’s decision in Dal Pra v Corporation of the City of Happy Valley [1995] EDLR 107.
41	Mr McElhinney, in his closing submission, suggested that the Council’s case against the proposed development relied too heavily on its failure to comply with certain Performance Criteria and Design Techniques, and Design Technique 76.5 in particular. He argued that this was an inappropriate approach to the assessment of a development proposal and cited a number of well-known authorities in support of his argument, including South Australian Housing Trust v Development Assessment Commission and Anor [1994] 63 SASR where the Supreme Court confirmed that no principle of a development plan is mandatory. King CJ concluded at p.37 of that judgment that "(t)he standards specified in the principle are the goal to be aimed at and the planning authority is to be guided by those standards in considering an application for consent".
42	Mr McElhinney also referred to the judgment of the Supreme Court in Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93. One of the issues, which arose in that case, was the refusal by the respondent Council to approve plans for a number of dwellings on the grounds that, amongst other things, they involved a departure from the prescribed "setback" distance from a road. The Council’s position on this matter was upheld on appeal by the Planning Appeals Board. In his judgment Jacobs J observed at p.105 that:

47	In Mr Billington’s view, none of these 10 circumstances was applicable to the current matter and he argued that there was no sound planning reason, on the evidence before the Court, for disregarding the clearly expressed intent of the Council-Wide Principles identified by Mr Barnes as of particular relevance to this matter and their related design techniques.
48	I have given careful consideration to these submissions by counsel. I have also carefully considered the evidence presented, the provisions of the Development Plan that I have identified as relevant and my observations on the view. In my judgment, on balance, the proposed development does not merit approval.
49	In reaching this decision I have not concluded that the failure of the proposed garage extension to comply with the specified width, height and setback requirements set out in the Development Plan provides a mandatory basis for refusal. However, I have concluded that the failure of the proposal to comply with each of these requirements by a substantial amount is decisive in a matter which, having regard to all relevant provisions of the Development Plan, is otherwise finely-balanced.
50	The proposed development fails to comply with Council-Wide Principles 71 and 76 to a significant extent. The existing garage is already substantially wider, at 9.22 metres, than the 6.5 metres set out in Principle 71 and Design Technique 71.1. This width will be maintained in the proposed extension. The extension will be 4 metres high rather than the 2.8 metres set out in Design Technique 76.5. And the front of the proposed extension will be very close to the street boundary – the existing garage is set back an appropriate distance in my view, but the proposed extension will be set back only 500mm from the street boundary. The evidence of the expert planners is that, to comply with Design Technique 76.5, it should be set back at least 2.9 metres and probably 4.92 metres. The overall effect will be a to create a development of substantial width, height and bulk very close to the street boundary and this cannot, in my judgment, fail to have a visually dominating effect on the streetscape which will diminish the visual amenity of Elm Street unacceptably.
51	I have therefore concluded that the decision of the Council to refuse the application should be upheld and the appeal dismissed. There will be an order to this effect.