DAVIS v NORTHERN AREAS COUNCIL [2008] SAERDC 3 (21 January 2008)

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Development application for a domestic outbuilding - retrospective application for consent - Residential Zone in the township of Jamestown - consent granted subject to conditions - Condition 5, by its terms, effectively refuses consent - hearing proceeding on the basis of a fresh assessment of the proposed outbuilding - assessment cannot consider the factors that led to the outbuilding being constructed without authorisation, the presence of the building as a benchmark for its impact nor hardship - locality defined - the Development Plan is clear, concise and consistent in expression - intended setback of the proposed outbuilding is significantly at odds with the qualitative and quantitive general and Zone provisions - circumstances that might act in support of a lesser setback distances are not sufficient to justify departure from the stated Objectives and Principles - development plan consent refused - appeal dismissed.

Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472; Kouflidis & Jenquin v Corporation of the City of Salisbury (1982) 29 SASR 321; Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356, considered.

THE COURT DELIVERED THE FOLLOWING JUDGMENT:
1                              This appeal concerns a proposed development on the land situated on the eastern side of the junction of Clifton Street and Cockburn Road in the township of Jamestown. The subject land is formally identified as Lot 11 in Deposited Plan 65359 and more particularly delineated in Certificate of Title Volume 5932 Folio 103. The Deposited Plan also comprises Lot 12 (to the east of the subject land) and Lot 13 immediately to the south.
2                              On the subject land is a single-storey dwelling and large domestic outbuilding. The Appellants, Mr and Mrs Davis, own the subject land but do not reside in the dwelling. Instead, they occupy the large dwelling on Lot 13.
3                              The domestic outbuilding referred to above is the subject matter of this appeal. By Development Application dated 30 April 2007, Mr and Mrs Davis applied to the Northern Areas Council (“the Council”) for Development Plan Consent to construct the outbuilding. In effect, the application sought consent retrospectively because the outbuilding had been constructed on the subject land some time earlier. The Council, in its Decision Notification dated 25 July 2007, advised Mr and Mrs Davis that it had granted consent subject to the imposition of five conditions.
4                              The proposed outbuilding is depicted on the plans accompanying the development application. It is 6 metres in width and about 9.2 metres long. The wall height is 2.7 metres. I accept Mr Billington’s estimation of the height at the ridge line of 3.5 metres. It has two roll-up doors in the western wall to enable access from a double width driveway which, in turn, is from Clifton Street.
5                              The development application shows the outbuilding to be sited 1 metre from the Cockburn Road boundary and between 1.18 metres and 1.25 metres from the eastern and common boundary with Lot 12.
6                              Condition 5 of the listed conditions of consent is expressed in the following terms:

7 Mr and Mrs Davis were aggrieved by Condition 5 and appealed to this Court. On one view, a condition that requires the resiting of a building of the magnitude required to comply with Condition 5 has the effect of refusing consent. I concur with Mr Billington’s submissions that the Council’s approach may be invalid and that the proceedings should be approached as a fresh assessment of the proposed outbuilding. I have proceeded on that basis.
8 Mr Davis presented the case for the Appellants. In the main, their case was founded on what appears to be an unfortunate sequence of events that led to the outbuilding being established on the subject land and for retrospective consent being sought. I took the opportunity to explain to Mr Davis that the role of the Court in these proceedings is to undertake an assessment of the proposal against the provisions of the relevant Development Plan. To take into account the stated events, attribution of responsibility, the potential hardship that might be incurred or to make use of the presence of the outbuilding as a reference point in the assessment would be in conflict with the well established role of this Court. Where an application is made for an unauthorised use of land or construction of a building, a decision is to be made on the planning considerations expressed in the relevant Development Plan irrespective of the past or continuing conduct of the applicant (Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) 69 SASR 472, Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321).

The Development Plan and relevant provisions
9                              The relevant Development Plan for the area of the Council is the version dated 25 January 2007 (“the Plan”).
10                           The subject land is depicted on Map NtA/22. It is situated within the Residential Zone (“the Zone”).
11                           The question to be answered in this matter is as follows: does the siting of the proposed outbuilding have proper regard to the relevant provisions of the Plan, and, in particular, those provisions which seek, in respect of the relevant locality, to protect or improve the streetscape and visual amenity and those that urge compliance with specified setback distances?
12                           Mr Billington was exhaustive in canvassing the provisions of the Plan that have relevance in the assessment. They are found in the Council Wide section, under the heading “Residential Zone” and within Tables NtA/2 and NtA/3. I have considered all of them and note that many provisions say much the same thing. The provisions that follow encapsulate the intent of the Plan as it relates to these proceedings.
13                           The starting point is the Zone provisions. The introductory text, inter alia, sets out the desired character:

Objective 3 seeks an improvement to streetscapes. Principles 3, 20, 21 and 22 variously support this objective by urging development to:

14                           Qualitative guidelines such as these are restated in similar language throughout the Plan. Objectives 42 and 50 and Principles 5, 16, 19(a)(d), 14, 117 and 121 are but some examples. I have had regard to all of them.
15                           The Plan also sets out, quite expressly, numerical guidelines for the placement of a building on land. General Principle 189, by reference to Table NtA/3, urges buildings to be setback 6 metres from a road boundary “unless a lesser difference [sic] would not cause interference to neighbouring properties or detract from the character or amenity of the locality”.[1]
16                           Principle 39 for the Zone lists a domestic outbuilding a complying development subject to compliance with, inter alia, the conditions in Table NtA/2. Item 1 of that table requires the building to be:

17 It is accepted that the conditions for complying development are generally a conservative but useful guide when assessing a proposed development against the desired character and strategic intent of a Zone.
18 Of most relevance, are the numerical guidelines in Principle 16 for the Zone:

Building Height No. of Storeys)	Primary Road Frontages(1)	Secondary Road Frontage	Side Boundary (other than for a common wall)	Rear Boundary
1	Refer Table NtA/3	4	1(2)	1
2 (second storey in roof-line)	Refer Table NtA/3	4	1	1
2	Refer Table NtA/3	4	4	4

*Primary Road Frontage is defined as the frontage having the lesser linear dimension and the Secondary Frontage as the frontage having a greater linear dimension.

(2) Refer Principle 18.
19 Having heard the submissions from the parties and observed the subject land and the development upon it, it is clear to me that the term “secondary road” in Principle 16 would apply to Cockburn Road.

The Locality
20                           Mr Billington suggested an area around the subject land that might be the relevant locality. I have considered his submissions and made my own observations. Factors such as character, amenity and the way in which buildings are sited with respect to road and other boundaries relevant in the assessment of the proposal can be gleaned from most if not all properties generally within 100 metres of the subject land. The distance of 100 metres does not form a hard and fast boundary of the locality. Rather, it encompasses those properties from which the subject land can be observed or have which features in common with the issues in the proceedings or the subject land.
21                           Most buildings within the locality are setback at least 8-10 metres from road boundaries. There are some exceptions but under no circumstances could the exceptions be said to determine the streetscape character. Although I did not hear evidence on the point, I accept that some of the exceptions predate the introduction of specific building setback provisions that appear in the Plan. It is of some relevance that, within 50 metres of the subject land, there are two properties occupied by large old bungalow style dwellings with unusually large front setback distances.
22                           The amenity of the locality is pleasant and to be expected in a large country township in the mid-north of the State during the hottest period of the year. The unsealed section of Cockburn Road immediately adjacent the subject land is a factor that diminishes the visual amenity. The land immediately to the east of the subject land is vacant. In my view, the fact that this land is unoccupied is not necessarily a factor in support of the Appellants’ case when assessing the visual impact of the proposed development. A development plan looks to the future and regard should be had to the likely position of a future dwelling on the site and its relationship with adjoining land.
23                           The subject land and, in particular, that part of it to be occupied by the proposed development is highly exposed to public view.

Assessment
24                           As I said earlier, the proposed outbuilding is to be assessed against the relevant provisions of the Plan. Other factors are to be considered. The prevailing and relevant aspects of the locality’s character and amenity and circumstances on the subject land and immediate environs are but some of the factors to be taken into account. However, the factors to be considered do not include the circumstances that gave rise to the building being constructed without the necessary authorisation or the consequences to the appellants should the proposal fail to meet the stated objectives and principles of the Plan.
25                           Read as a whole the Plan provides, with particular clarity, its intent for the siting of buildings in the Residential Zone. In common with most if not all Development Plans it has several provisions that are qualitative. However, it has not left a planning authority or this Court to undertake the task of assessment by reference to qualitative guidelines alone. Instead, it urges compliance with expressly stated numerical guidelines.
26                           The proposal falls well short of the mark when assessed against both. When assessed against that aspect of the locality’s character determined by the siting of buildings on land, it would, if allowed to proceed, be one of only two buildings on or near a road boundary in an area of the township in which there exists a common setback distance in excess of 8 metres. Unacceptable conflict with provisions such as Council Wide Principles 16, 19, 117 and 121 would arise as a consequence.
27                           Also it falls well short of compliance with the relevant numerical guidelines for setback distances. Principle 16 is quite explicit in its intent. It seeks, inter alia, buildings to be sited to “create attractive streetscapes” and, to achieve that goal, the principle establishes minimum distances that apply to buildings proposed to be constructed on properties that are situated on the corner of two roads. Principle 16, being specific for the Zone, carries particular weight and would not, in the circumstances, be cast aside in favour of the (more restrictive) provisions of General Principle 189. However, when assessing the extent to which a proposed development might be permitted to depart from a specific zone provision such as Principle 16, the conditions that would render an outbuilding a complying development within the Zone is a factor to be taken into account. In this instance Principle 39 establishes, inter alia, a setback of 8 metres for buildings as one qualifier for a proposal to be determined a complying development. On the face of it, a complying development is one which conforms with the desired character of a zone.
28                           Mr Billington submitted that there is little or no support for the proposal to depart from the expressed intent of the Plan to the extent that it does. He referred to the decision of the Full Court of the Supreme Court in Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356. In that decision, at para 18, a number of considerations were listed as relevant matters when determining whether a planning authority or this Court is justified in departing from clearly expressed policy. I have emphasised these words because that is precisely the nature of the policies within the Plan relevant in these proceedings.
29                           I have considered all that has been put before me in these proceedings against each of the factors enunciated by the Full Court. Having regard to general Principle 189, it is necessary to acknowledge that the proposed position of the outbuilding will have no immediate effect on the neighbour to the east because the land is vacant. Also, when viewed in isolation, the outbuilding would be constructed in a manner which respects the appearance and style of the existing dwelling on the subject land. However, these factors carry insufficient weight in the assessment. The policies are clear and unambiguous in their purpose, are tailored for the Zone and are consistent in support of the stated goals for the Zone and the Plan generally and with the established character of the locality.
30                           Put simply, the proposed setback of 1 metre is, by a considerable margin, out of kilter with the setbacks that characterise the locality and the expressly stated numerical guidelines. The proximity of the proposed outbuilding to Cockburn Road is incompatible with the desire of the Plan to, in the words of the Zone’s introductory text, “maintain the attractive streetscape character of the residential areas predominantly characterised by ... deep building setbacks and landscaped front gardens” and the planning outcomes envisaged in the relevant provisions of the Plan mentioned above and, in particular, Zone Objective 3 and Principles 16, 20, 21 and 22. There are no conditions or circumstances in the locality which suggests that the clearly stated policy intent is redundant and should not be applied in the subject circumstances.
31                           For the above reasons I have reached the conclusion that:

1. Development Plan Consent for the outbuilding proposed in Development Application No. 764/073/07 should be refused; and

Environment Resources and Development Court of South Australia

DAVIS v NORTHERN AREAS COUNCIL [2008] SAERDC 3 (21 January 2008)