ANTONIOU v CITY OF HOLDFAST BAY [2008] SAERDC 4 (25 January 2008)

Last Updated: 30 January 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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ANTONIOU v CITY OF HOLDFAST BAY

[2008] SAERDC 4

Judgment of Commissioner Green

25 January 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refused by the Council - demolition of two dwellings and erection of two, part two storey dwellings - Residential Zone and Streetscape Character (Glenelg and Glenelg North) Policy Area 8 - built form character of the locality and streetscape with small-scale single storey Local Heritage Places opposite; Desired Future Character Statement; height, mass, scale, setbacks, landscaping, fencing all considered - not sufficiently complementary despite comparability with an adjoining two storey dwelling - insufficient compliance with the Development Plan - appeal dismissed - decision of the Council confirmed.

Development Act 1993, referred to.

ANTONIOU v CITY OF HOLDFAST BAY
[2008] SAERDC 4

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	This matter is an applicant appeal against the decision of the City of Holdfast Bay ("the Council") to refuse to grant Development Plan Consent to Development Application No. 110/00443/07, made under the Development Act 1993, for the demolition of two dwellings and the erection of two dwellings at Glenelg North.
2	The Development Assessment Panel of the Council refused the application for the following reasons:

... that it is contrary to Council Wide Principles 74, 76, 182 and 186 Residential Zone Objectives 1 and 2 and Policy Area 8 Objective 1 and Principles 1 and 6. More specifically, the application does not meet the intent of the development plan in relation to:

. The height, bulk and scale;

. Impact on character of locality; and

. Impact on nearby Local Heritage Places.

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

Registration date of application:	24 May 2007
Subject land address:	6-8 Alison Street, Glenelg North (Allotment 5 FP1885, CT Vol. 5787 Fol. 384)
Existing use:	Two dwellings
Development proposal:	Demolition of two dwellings and erection of two, two-storey dwellings in the form of semi-detached dwellings and garaging, fencing and landscaping
Relevant authority:	City of Holdfast Bay
Relevant/appropriate Development Plan:	Holdfast Bay (City) consolidated version 26 October 2006
Relevant Zone/Area:	Residential (RZ hereafter)/Streetscape Character (Glenelg and Glenelg North) Policy Area 8 (PA8 hereafter)
Date of decision:	26 September 2007
Appeal lodged:	8 October 2007
Conference concluded:	30 October 2007

4

The Court viewed the subject land and the locality on the morning of Monday, 10 December 2007, in the presence of the parties and the experts. A view was also taken of a property with a similar building erected thereon at Second Avenue, Joslin in the afternoon of 18 December 2007 in the presence of the parties.

5

Witnesses providing evidence to assist the Court and to which regard is given comprised, for the appellant, the male appellant as to needs, wishes and his opinion as a lay person, and the designer Mr E Juczenko with respect to building design elements and amendments; and for the respondent Council, Mr D Batge, an experienced consultant town planner (refer Exhibit R2) and Ms K McDougall, an experienced consultant architectural historian and conservation and heritage advisor (refer Exhibit R3).

Subject Land

6	The subject land is located on the eastern side of Alison Street between Sandison Terrace and Golflands Terrace. It comprises a single, relatively wide allotment with a rectangular shape except for a small cut-off in its north eastern corner. It has a frontage of 23.57 metres to Alison Street, a depth of up to 48.77 metres and an area of some 1143 square metres. The land is relatively level with a variation in height not exceeding some 380 millimetres according to Mr Batge, although in general the difference across the site is said to be some 200 millimetres.
7	The land contains two dwellings with the northern one being single-storey and the southern, two-storey. The front portion of the latter building has relatively high walls setting it higher than those of adjacent single-storey dwellings. The two-storey dwelling is set back approximately 12 metres from the Alison Street front boundary and appears to be in relatively poor condition. The single-storey northern dwelling is further set back at some 21 metres from the front boundary. Neither of these dwellings is designated to have any heritage value. There is a swimming pool in the south eastern corner and an outbuilding located in the north eastern corner of the land.
8	Vehicular access is available through separate driveways for each dwelling along both the northern and southern boundaries. Photographs of the existing dwellings are contained in Exhibit A2.

Development Proposal

9

The proposal comprises the demolition of the two existing dwellings and the construction of a part two-storey building containing individual dwellings in the format of semi-detached dwellings, arranged side-by-side with a driveway down each side of the front section of the dwellings accessing garages that are set behind the facade of each dwelling. Amendments have been made to the proposal plans (Exhibit A2) post the Council decision, however, they are relatively minor and are able to be appropriately determined through the Court hearing in this matter.

10

A summary of the amended proposal as provided by Mr Batge is as follows:

Dwelling	No. 6 (as number on plans)	No. 8 (as numbered on plans)
Site area	575m2	569m2
Site frontage	11.785m	11.785m
Site depth	48.77m	45.72-48.77m
Ground floor area (including garage 7 porch)	255m2	255m2
Upper Floor area	93m2	93m2
Front Balcony	4m	4m
Site coverage	44.3%	44.8%
Wall Height Single storey Two storey	3.2m 6.3m	3.2m 6.3m
Total height Front gables Ridge line	9m 8.9m	9m 8.9m
Front set-back	6m	6m
Rear set-back	9m	9m
Side set-back Garage Other walls	Nil 1.15 rear to 3.5m front	Nil 1.15 rear to 3.5m front
Private open space	152m2	146m2

The front façade has reasonably strong Victorian/Federation influences in its styling, including sandstone front façade, steeply pitched roof and gables at approximately 45 degrees, triple windows at ground and upper floor levels, grooved quoins, OG style gutters and front balconies/verandahs. Behind the front façade of the building however, it becomes a large redbrick walled building with hipped roofs comprising both single and two-storey sections with approximately the rear half of the building being single storey.

The front boundary is proposed to be fenced with a precast plinth and pillar fence with black wrought iron panels. The pillars are approximately 2.2 metres in height with the panels 2 metres high.

Each dwelling contains three bedrooms, a study/bedroom, living/dining area, family/meals area, upper level library (could also be used as a bedroom if a door were to be fitted) and store room and a double garage.

Locality

11	Comprising that part of the area surrounding the subject land of tangible influence on it and that this specific proposal affects, to a notable degree, I find that the locality is to be based on visual amenity and character perception factors. I have noted the boundary defined by Mr Batge (attached to Exhibit R2) and I generally agree with it, except to the north, where I find that it extends further to include numbers 20 and 39 Alison Street. In addition, I find that development in Carey Close and Gore Street or more eastward along Sandison Terrace, are beyond the realms of significant influence or impact despite the submissions of the appellants in their case and on the view.
12	As generally summarised by Mr Batge, the locality comprises the following main features:
•	a part two-storey detached dwelling located on the corner of Alison Street and Golflands Terrace partly adjoining the front section of the northern boundary of the subject land;
•	a large single-storey detached dwelling at 4 Golflands Terrace abutting the rear section of the northern boundary of the subject land;
•	a group of single-storey residential flat buildings to the rear of the subject land to the east;
•	early single-storey detached dwellings located adjacent to the southern boundary of the subject land at 4 Alison Street and 1 Sandison Terrace and a later single-storey detached dwelling at 1A Sandison Terrace;
•	a "boomerang style" single-storey detached dwelling at 3 Sandison Terrace;
•	single-storey cottages along the western side of Alison Street opposite the subject land including a group numbered 1-3, 1/9 and 2/9, 13, 15 and 17 Alison Street listed as Local Heritage Places in Table HoB/8;
•	single-storey, double and triple fronted hipped roof dwellings along the northern side of Golflands Terrace;
•	in the south-eastern quadrant of the Alison Street-Sandison Terrace intersection a 1960s type, two-storey residential flat building development forming part of a four building complex but with two of these buildings not within the relevant locality;
•	an open space recreation area named Parkinson Reserve on the western side of Alison Street and south of Caroline Street (owned by the Council) being the only exception to residential land use. It is a relatively flat open grassed area with some medium sized trees located along the street frontages; and
•	varied street widths with Alison and Caroline Streets being relatively narrow with a road reserve of approximately 10 metres, Sandison Terrace with a road reserve of approximately 12 metres and Golflands Terrace much wider with a road reserve of approximately 20 metres (the relatively narrow street width together with limited front setbacks of the dwellings along it give the relevant section of Alison Street a more enclosed streetscape than others in the locality).
13	The section of Alison Street located between the northern side of Golflands Terrace and the intersection with Caroline Street and Sandison Terrace (excepting the detached dwelling at 2 Golflands Terrace) are low scale single-storey dwellings up to medium density. Some of these are early railway cottages listed as Local Heritage Places as referred to above. The dwelling at 2 Golflands Terrace is single-storey adjacent the Alison Street boundary changing to part two-storey that appears to have a floor area according to Mr Batge of about one-third of the ground floor area. The upper storey is set back from Alison Street frontage and the northern boundary of the subject land – in the order of 7 and 6 metres respectively. This dwelling has a part two-storey façade facing Golflands Terrace but is predominantly of single-storey presentation to the Alison Street side with about half of the height of the upper level walls visible above the roof line of the single-storey part of the building. Notwithstanding, the character of the locality is dominated by the single-storey dwellings adjacent the subject land, particularly those along the western side of Alison Street. I agree with the assessment by Mr Batge.
14	At the northern end of the locality, notwithstanding 2 Golflands Terrace, the character is predominantly single-storey dwellings. The dwellings appear to have been constructed in the 1960s with masonry walls and hipped roofs, predominantly with tiles. It includes medium density residential flat buildings on the southern side and detached dwellings on the northern side at low density.
15	Mr Batge considered that part of the two-storey 1950s-1960s Kingslea residential flat building complex on the corner of Alison Street and Sandison Terrace at the southern end of the locality to have limited influence on the character of the section of the streetscape between Sandison and north of Golflands Terraces. That development is a series of concrete block buildings that are partially screened when viewed from Alison Street near the subject land. Similarly, Parkinson Reserve although providing a pleasant area of public open space available to residents in the locality and a part of the overall Alison Street streetscape, plays a limited role in the built form character of the locality affected by the proposal.
16	Residential amenity levels are assessed to be moderate, enhanced by "heritage" character elements and the condition and appearance of some built form and gardens, but marred by some buildings, particularly the older two-storey flats to the south and the condition of some of the dwellings to the west (as well as on the subject land).

Relevant Development Plan Provisions

17	I have noted the provisions referred to by counsel, the appellants and the experts and I find the following to be the provisions in the appropriate/relevant Development Plan providing the most guidance, particularly with respect to the key issues in focus in this matter.

COUNCIL WIDE (CW hereafter)
Objectives: 1, 3, 12, 14, 16, 23, 26-28, 30-35, 60, 61 and 84; and
Principles of Development Control: 73-77, 78(b), 89, 90, 92-95, 97-109, 112, 115-120, 124, 126-128, 132-135, 173, 177, 178, 180, 181, 186, 252, 254, 258-260, 262 and 263.

RESIDENTIAL ZONE (RZ hereafter)
Objectives: 1 and 2; and
Desired Future Character Statement including subclauses (a) and (f) on p 93;
Principles of Development Control: 1, 4, 6 and 7
Streetscape Character (Glenelg and Glenelg North) Policy Area 8 (PA8 hereafter)
Objective: 1; and
Desired Future Character Statement especially paras 1, 6 and 7(a)-(g);
Principles of Development Control: 1 (and Design Technique 1.1(b)), 2, 4-7.
TABLE HoB/1, 4 and 8
MAP HoB/1 (Overlay 1), 6 and 16

Processing

18

The Council categorised the development proposal as Category 2 and it would appear that following limited public notification, one representation was received (referring to the roof line and height of the original proposal, by the neighbour at 2 Golflands Terrace). In addition, except for internal referrals, there appeared to be no requirement for referrals to external agencies and departments.

Assessment Approach

19

Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.

20

In terms of s 35 and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Plan guidelines and involves weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the RZ and PA8 and tested in the specific site and locality context. The Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.

Planning Assessment

21	There are several aspects about the proposal that comprise positives that are generally acceptable against many of the Development Plan criteria and in particular the following:

• the infill residential redevelopment nature of the proposal;

• the dwelling density, site areas and frontage widths for each dwelling;

• site coverage (at ground level);

• access, driveway design and parking provision;

• rear and side setbacks and aspects dealing with privacy and overshadowing of adjoining properties;

• private open space provision and disposition;

• functional aspects; and

• capacity to incorporate adequate stormwater management and conservation techniques (refer Principle 119) though not demonstrated to date by the appellants.

22	Key aspects at the heart of this matter (identified by the Council and the experts, with which I agree) are as follows:
•	the impact of the proposal on the built form character of the locality and the streetscape of Alison Street (including the row of Local Heritage Place cottages opposite) when compared to the Desired Future Character Statements and other Policy Area and Zone specific provisions in the Development Plan; and
•	the combination of the proposed building’s two-storey form/height, front setbacks, landscaping opportunities and front fence.
23	Firstly, it is appropriate to consider the specific relevant Development Plan guidelines to these issues and design elements. In part, the Desired Future Character Statement for the RZ under Objective 1 notes:

(a) the eastern portion is generally lower in scale and density, more uniform in street pattern and more consistently open and suburban in existing character, and offers more living opportunities for families;

...

The Residential Zone will continue to evolve as a number of suburban localities, as a result of the progressive infill redevelopment of existing sites, both individually and through consolidation to form larger redevelopment sites. The Zone will contain the majority of the city’s suburban living opportunities, and consequently the overall character and form of the Zone, and the localities within it, will be suburban in nature.

24	Clear guides are provided in para 6 of the Desired Future Character Statement as follows:

Infill residential development that does not compromise the Zone’s suburban character will progressively increase dwelling densities, through unobtrusive small scale developments in all parts of the Zone. The Zone’s primary suburban character is defined by detached dwellings on individual allotments. Infill development should have a comparable height, mass, scale and setback to that of existing dwellings in the Zone. This infill development should make an important contribution to the Zone’s housing diversity and hence housing location and type choices in the city. The Zone’s infill development opportunities should be in the nature of (in order of preference):

...

(c) semi-detached dwellings where site considerations permit.

Building design should be both domestic and contemporary in design and character and create physical and visual relationships between dwellings and their respective sites and localities that support and reinforce the Zone’s essentially suburban character through development that:

(a) is generally of single storey scale in the areas east of Brighton Road, and single to two storey scale in the areas west of Brighton Road, exhibiting typical domestic design forms;

(b) uses low visually permeable front fences, walls and planting to define the public realm and private property boundary;

(c) incorporates substantial landscaped front yards that contribute to the suburban landscape and the retention of mature street trees;

(d) has side and rear building setbacks that incorporate a typical ‘driveway’ setback on one side and a pedestrian path setback on the other side, with on-boundary built form limited in height, length and location to the equivalent of typical open carports or garage structures;

(e) incorporates vehicle garaging set back clearly behind the immediately adjacent part of the front building facade;

(f) uses significant stepping and articulation in front elevation to achieve visual relief and architectural interest in the building's address to the street;

...

(h) uses hipped roof forms with corrugated iron or shingles that are generally dark in colour;

(i) incorporates materials and finishes that respond to the character created by the predominant use of brick, stone and rendered finishes, and architectural design and detailing that responds to the forms of fenestration, doorways, windows and eaves;

...

25	The RZ Objective 2 seeks:

Objective 2: A zone primarily accommodating single storey detached dwellings on individual allotments, while providing opportunities for compatible infill development.

26	I also note that Principles 1, 4 and 6 support the above as follows:

1 Development in the Residential Zone should provide for an increase in the number of dwellings through small-scale infill development and redevelopment.

...

4 Dwellings should be setback 3 metres (excluding garages and carports) from a side boundary to incorporate a driveway and 1 metre from the other side boundary to incorporate a pedestrian path.

...

6 In the Residential Zone located east of Brighton Road and Tapleys Hill Road development should:

(a) generally be single storey and in any case the vertical wall height at any point, excluding gables, should not exceed 3.5 metres above natural ground level; and

(b) two storey development should incorporate the second storey within the roof structure and the floor area of the second storey should be a maximum of 40 percent of the ground floor footprint of the dwelling and attached garage.

27	The most specific PA8 guidelines for the Glenelg North area provide in the Desired Future Character Statement, the following:

Significant features of the Streetscape Character Policy Area include consistent design themes comprising single storey brick and stone dwellings with substantial hipped or gabled roof forms, consistent building setbacks, landscaped front yards and visually permeable fencing facing public streets. The Glenelg North portion of the Streetscape Character Policy Area is characterised by smaller scale and simplified building forms. While some infill residential flat development has occurred in parts of the Policy Area, this does not represent the predominant character and is not the form of desired future development of the policy area.

...

Development should reinforce the character of the Policy Area established by the existing mix of predominantly small scale traditional dwelling types, and complement those existing in respect of mass, composition, architectural detailing, materials and colours. New buildings should incorporate pitched roof forms together with verandah and portico elements. Where row dwellings are a dominant feature in the streetscape, new buildings may also incorporate parapets to front facades.

Development should be complementary to the predominant established character through:

(a) the use of single storey building scale that exhibits typical residential design forms. There may be some circumstances where site dimensions enable two storey development, primarily for detached dwellings, to be accommodated while contributing through other key characteristics to the established character qualities of the Policy Area;

(b) the establishment of front setbacks consistent with those of adjacent sites, creating a uniform street elevation defined by landscaped front yards that contribute to the established streetscape character;

(c) building forms (eg development footprint, height, massing and architectural detail) that match or relate closely to those of the established detached dwellings in the locality;

(d) the use of visible hip or gable roof forms with corrugated iron or shingle roofing materials that are generally dark in colour;

(e) the use of materials and finishes that reinforce the character created by the typical brick, clay tiles, stone, timber and rendered finishes typical of the era of the policy area’s development.

...

28	PA8 Principles 1 and 5 are also particularly instructive:

PRINCIPLES OF DEVELOPMENT CONTROL

1 Development should be limited to one storey, except where a dwelling has a primary frontage to a public road and the second storey is compatible in form, height and scale with existing development in the locality.

...

1.1 In relation to Principle 1:

(b) in new dwellings, a second storey within the roof space where the overall building height, scale and form is compatible with existing single-storey development in the locality; and

...

5 Where a new dwelling is constructed alongside or within a group of older style residential buildings, the new dwelling should be of a similar height, scale and proportions and be constructed of materials to complement and reinforce the character and design elements of existing buildings.

6 Development should conserve, enhance and complement the distinctive features of existing dwellings in the policy area, including their:

(a) front, side and rear dwelling setbacks;

(b) scale;

(c) roof forms;

...

(e) external materials;

...

[my underlining]

29	The proposal does not meet certain of these guides (storeys/height, mass/scale, setbacks to side boundaries) and is not comparable or complementary to most of the dwellings comprising the predominant, established character of the locality and the streetscape, in the opinions of Ms McDougall and Mr Batge, with which I agree. In addition, the second storey is not incorporated within the roof structure in terms of architectural form, as envisaged by the guidelines. It is a bold, dominant two-storey form.
30	Notwithstanding the above, there is one building adjoining (2 Golflands Terrace) to the north that the proposal is clearly comparable with, but that building is also out of kilter with the built form character of the locality. Together with older two-storey residential flat buildings well to the south, these are not strong, desirable reference points for new development given the policies of the Plan, and in terms of the latter given the distance, buildings and trees intervening.
31	There is moderate opportunity for substantial landscaping to be undertaken in the front yard to soften the appearance of the proposed building and a late amendment offered by the appellants is to relocate the building approximately 2 metres further eastward away from the street boundary, to facilitate a more generous 8 metre front setback. I note that would be an improvement and not jeopardize adequate private open space or create undesirable impacts to adjoining developments to the east.
32	Nevertheless, whilst those factors are taken into account, I agree with Ms McDougall that the proposal does not complement and reinforce the character and design elements of those low scale, low mass, single-storey Local Heritage Place dwellings as sought by PA8 Principle 5, and in addition, a further setback of 2 metres and landscaping would be insufficient to render it acceptable, though they would improve compatibility of the proposal in the streetscape.
33	The guidelines for RZ and PA8 allow for limited opportunities and circumstances for two-storey dwellings but if they are to occur, they need to be sensitively designed to ensure that they are complementary, reinforce and do not dominate the scale/mass and character of the existing traditional dwellings and predominant character. In my assessment the proposal does not fit with that policy approach. The expert evidence of Mr Batge and Ms McDougall was well tested, but not seriously challenged during cross-examination nor by the case of the appellants on these key considerations.
34	The second view of similar semi-detached dwellings (upon which the design before the Court was modeled) built at 115A and 115B Second Avenue, Joslin, assisted the Court to appreciate the proposal and its likely impacts and degree of fit with its locality. It was pointed out and I note that those dwellings were marginally taller in height but with greater front setbacks than the proposal and the traditional semi-replica Victorian detailing was more evident than perceived from the proposal plans. The effect and impact of well-established front landscaping was also noteworthy. However, its appearance did not convince the Court of acceptability of the development proposal within the subject locality and streetscape in question, though undoubtedly it is attractive and of good quality.
35	Notwithstanding, on the expert evidence and confirmed by my assessment, the proposal does not sufficiently meet important Development Plan guidelines such as:
•	CW Objective 14 or Principles 74, 75, 76 or 78(b); or
•	RZ Objective 1, Desired Future Character Statement or Principle 6; or
•	PA8 Objective 1, Desired Future Character Statement and Principles 1, 5 and 6(b); or
•	the Development Plan when weighed up and considered as a whole.

Conclusions

36

Upon carefully considering and weighing up the evidence, the view of the locality and a similar building, and the relevant Development Plan guidelines and all relevant matters (including two possible authorities – not found to be highly relevant), I conclude that the proposal does not sufficiently meet the Development Plan and that it does not warrant consent. Its scale, mass and façade presentation to Alison Street in particular, are not acceptable in the relevant locality and the Alison Street streetscape.

Decision

37	The appeal is dismissed. The decision of the respondent Council is upheld.
38	There will be an order to that effect.