BAROSSA PROJECTS PTY LTD v THE BAROSSA COUNCIL [2008] SAERDC 8 (11 February 2008)

Last Updated: 12 February 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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BAROSSA PROJECTS PTY LTD v THE BAROSSA COUNCIL

[2008] SAERDC 8

Judgment of Commissioner Brine

11 February 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refused by the Council - change of use from residential to offices (amended plan) - located edge of Residential Policy Area 34 and abuts the Town Centre Zone - non-residential use, building and character retention, landscaping, traffic generation, acces to site, parking and site development considered - appeal allowed - decision of the Council reversed - development plan consent granted.

Development Act 1993, referred to.

Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1982) 32 SASR 85; Eastern Building Group Pty Ltd v The Barossa Council [2005] SAERDC 26; Barrick Pty Ltd v The Barossa Council [2004] SAERDC 103, considered.

BAROSSA PROJECTS PTY LTD v THE BAROSSA COUNCIL
[2008] SAERDC 8

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1	This matter is an appeal by the applicant, Barossa Projects Pty Ltd, against the decision of The Barossa Council to refuse Development Application No. 960/00437/07 for proposed office development at 104 Murray Street, Tanunda.

Subject Land and its Surroundings

2	The subject land is a corner site which fronts Murray Street, an arterial road which runs through the Tanunda town centre. Its secondary frontage is to Sobels Street. The site is situated at the edge of Residential Policy Area 34. It abuts the Town Centre Zone on both its street frontages.
3	The site is wedge-shaped without an apex. It has a frontage of 33.5 metres to Murray Street and 49.28 metres to Sobels Street. The rear boundary is 9.53 metres and the remaining boundary 55 metres. The site slopes slightly to the rear and has been cleared of all vegetation. Two buildings are sited near the north-east boundary of the site: an older house which is currently used as consulting rooms fronts Murray Street and two more recently constructed residential units run parallel to the rest of the boundary; they and another three units have a narrow frontage and driveway to Sobels Street adjacent to the subject site.
4	The entrance to Sobels Street from Murray Street currently has an attractive residence on the opposite corner to the subject site, which is situated in the Town Centre Zone, and hence it is open to development for commercial use in the future. The other houses in Sobels Street less obviously contribute to the character of the R34 Zone than, for instance, those in College Street. In general the houses in Murray Street between Sobels Street and College Street are of a higher architectural and historical character than those in Sobels Street.
5	The site is occupied by what had until recently been a dwelling. It is an attractive, turn of the century building with a front and return veranda with some cast iron details. The house has a corrugated iron roof to the front and a lean-to roof behind. The total area of the building is approximately 150 square metres.

The Proposal

6

The amended application, which was submitted to the Court, is for a change of use from residential to offices and to provide a sign to Murray Street. The existing driveway onto Murray Street is to be utilised as an ingress to the site with a disability parking space to the front of the site and 7 car parking spaces to the rear. Egress is proposed to Sobels Street. During the hearing proposals were made by the appellant to relocate the disability parking space to the rear of the site thus reducing the total number of parking spaces from 8 to 7. It was also proposed that the driveway be narrowed. No details were provided of these later revisions. Landscaping was described on the amended site plan (Exhibit A1) as ‘indicative’. In addition, the defendant’s planner, Mr B Irvine, prepared a sketch (Exhibit R4) showing a car park with a single access from Sobels Street, which was submitted to the Court during the hearing. Four drawings that were submitted to the Council as part of the application and the later amended site plan (Exhibit A1) were all prepared by Greg Tucker and all are undated.

The Court Process

7

The Court visited the site and viewed the length of Sobels Street, College Street (between Sobels Street and Murray Street), and Murray Street (between College Street and Sobels Street); a non-residential use further up Murray Street away from the town centre was also brought to the notice of the Court.

8

At the hearing, Mr Levinson appeared for the appellant. Witnesses for the appellant were Mr P I Fairweather, an Estate Agent and a Director of Barossa Projects Pty Ltd, and expert witnesses Mr P Brunning, a consultant town planner, and Mr P Weaver, a consultant traffic engineer. Mr Hilditch appeared for the respondent. Expert witnesses for the respondent were Mr Irvine, a planner at the Barossa Council, and two members of the Department of Transport Energy and Infrastructure, Mr D Fanok a traffic engineer and Mr MW Hyrciuk, a town planner who both appeared under summons.

The Locality

9

The two expert planning witnesses differed in their assessment of the relevant locality. Mr Irvine defined an area contained within a radius of 100 metres of the subject site, while Mr Brunning delineated an area about twice the size extending north-west up Murray Street. The area defined by Mr Brunning is adopted, with an additional area taking in the rest of Sobels Street and that part of College Street that was inspected on the view and is identified in para 7 above. This area better demonstrates the character of Policy Area A34 and shows a number of non-residential uses in Murray Street. These were features pointed out by the parties on the view. It also acknowledges the force of the opinion of the Jacobs J in Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown (1982) 32 SASR 85 that the amenity of a locality "has to be judged by reference to the locality as a whole and not by reference only to the houses located closest" to the adjoining zone. The larger area provides a better indication of its character.

Assessment of the Proposal’s Traffic Generation, Access and Parking

Traffic generation

10

The proposal to convert the existing building into offices of an unspecified nature created a degree of uncertainty as to the volume of traffic, which might be generated by the proposal. All expert traffic witnesses relied on the generic use, "offices" and the area of the building to make their predictions. Mr Weaver estimated that for such a development 15 cars might enter and 15 cars leave the site per day. Mr Fanok agreed, while Mr Hyrciuk argued that the figure might be double that number. The lower figure is accepted here. Compared with the volume of traffic in Sobels Street, which was estimated by Mr Weaver to be approximately 200 cars per day (a figure which was not disputed by the other expert witnesses) and compared to the volume of traffic in Murray Street estimated to be at a rate of 830 to 1,000 vehicles per day in peak hours, the volume of traffic that might be generated by this proposal constitutes an insignificant addition over and above the traffic from a residential use on the subject site which was agreed to be in the order of 10 movements in and 10 out of the site per day.

Access to the Site

11

Currently access to the site is only from Murray Street via a crossover situated approximately 30 metres past Sobels Street. The amended proposal is for ingress to be from Murray Street using the same crossover and a new point of egress into Sobels Street. It was agreed by both Mr Weaver and Mr Fanok that this proposal was preferable to the proposal submitted to Council, which utilised access from Murray Street only. It was Mr Fanok’s view that all access should be from Sobels Street which he considered to be a safer alternative and one which took note of Objective 27 of the Development Plan which states that there should be "limited access onto primary and secondary arterial roads" (of which Murray Street is one). Mr Fanok also quoted figures on accidents occurring in the area. There had been no accidents recorded at the junction of Sobels and Murray Streets and a small but unspecified number had occurred on Murray Street between Sobels Street and College Crescent. Mr Weaver considered ingress from Murray Street to be satisfactory in terms of traffic safety. He also noted that the street trees did not obscure the view of the entry thus adding to its safety.

12

Other relevant objectives which were quoted were:

Objective 24: The safe and efficient movement of people and goods.

Objective 25: The free flow of traffic on roads by minimising interference from adjoining development.

13

Principles quoted as relevant were Council Wide Principles 75-81, 85, 86 and 88.

14

Considering all these Objectives and Principles, in terms of traffic flow and safety, access only from Sobels Street appears the better alternative. However, also considering what is only a small additional traffic load generated by this proposal the imperative is not a strong one, as was noted by Mr Weaver. Taking into account the small increases in traffic volume on the arterial road, non-compliance with the associated provisions in the Development Plan quoted above are not considered fatal to the proposal.

Parking and Site Development

15

It was agreed by the expert witnesses that relocating the disabled car parking space to the rear of the site was a desirable additional amendment. The consequent reduction in the total number of car parks to 7 was still one more than was required by the Development Plan (Principle 77). Such relocation would also allow the access driveway to be narrowed which was also agreed by Mr Weaver to be an improvement. The plan provided by Mr Irvine showing parking associated with a single access from Sobels Street (Exhibit R4) also showed that it was possible to provide sufficient parking on the site. Mr Weaver confirmed that such an arrangement could be feasible from a traffic point of view. Evidence from both expert witnesses showed that adequate and convenient parking could be provided on site.

16

It was conceded by the appellant that insufficient detail had been provided to assess the provision of landscaping on the site.

An Assessment of the Proposed Development on the Character of the Area

17	The salient Objectives are:

Objectives in the Residential Zone: 1, 2, 3, 5 and 6;
Principles in the Residential Zone: 9 and 10;
Objective 1 in the Residential Policy Area 34 – Tanunda North Historic;
Desired Character Statement for the Residential Policy Area 34; and
Principle 1 in the Residential Policy Area 34.

18	It was agreed by both parties that Objectives 1 and 2 contemplated non-residential uses in residential zones under certain conditions as specified in Objective 2: that such uses are ‘small in scale, benign in external impact and serve the needs of the local community’. Objective 6 imposes further conditions.
19	It was argued by Mr Irvine that Objective 1 was in conflict with the provisions of the Residential Policy Area 34 – Tanunda North Historic and that as stated in the Introduction the provisions of Area 34 take precedence. It was Mr Irvine’s view that Area 34 did not contemplate non-residential development within it and hence non-residential development was not appropriate on the subject site. Considering all the evidence on this matter, I incline to the view that because Residential Policy Area 34 – Tanunda North Historic is silent on this matter, non-residential development can be contemplated if it meets the relevant conditions set out in the Development Plan. This was also the view of Commissioner Mosel in Eastern Building Group Pty Ltd v The Barossa Council [2005] SAERDC 26.
20	Mr Irvine also argued and presented evidence (Exhibit R3) that there was demand for residential buildings in the area so that a continuing residential use was to be preferred on the site. He also argued that office accommodation could be situated elsewhere in the town. While this may be so it is not the subject of this application. I note that this Court has previously said in Barrick Pty Ltd v The Barossa Council [2004] SAERDC 103, "The question is not ‘is this the best place for the proposed development?’, but rather, ‘is this an acceptable development for this site and locality?’" I accept that this is the appropriate approach to assessment of proposed development and consequently, I consider this line of argument to be irrelevant.
21	The most important consideration in this matter is that the change of use is to be wholly accommodated within the existing building, which was formerly a dwelling. The character of the building is of the kind which the zone seeks to retain. Additions to the site are a sign located on Murray Street, car parking and a driveway through the site with additional access onto Sobels Street. This assessment will consider first the building and then the site.
22	Recognising that the provisions of Residential Policy Area 34 – Tanunda North Historic take precedence over those of the general Residential Area, I shall consider them first. Objective 1 states:

Maintenance and enhancement of the low-scale, historic residential character (derived particularly from significant examples of nineteenth century development) as described in the Desired Character Statement.

23	Principle of Development Control 1 states:

1 Development should:

(a) conserve and enhance the Desired Character of the Area;

(b) be compatible with the height, roof-forms and pitches, proportions, siting, architectural style and detailing, materials and frontage patterns of the nineteenth century dwellings typical in the locality; and

(c) encourage the retention of sound housing stock that contributes significantly to the Desired Character.

24	So far as the building itself is concerned, and because it remains unaltered and, indeed, is likely to be restored, it conforms with Objective 1 and the Desired Character of the Area. It also meets Principle of Development Control 1(a) and (b). It is less clear whether it also meets Principle of Development Control 1(c). Mr Levinson argued that the intent of the Principle is to regulate building form rather than use. I agree with this submission and I am also of the opinion that the development meets Principle 1(c).
25	I now turn to the conditions in the Residential Zone. Objective 2 states that such uses should be "small in scale, benign in external impact and serve the needs of the local community."
26	Evidence was given as to what constituted "small in scale". Other cases, for example, Dening & Stamoulis v The Barossa Council & Ors [2005] SAERDC 9, point to a consideration of the scale of the particular use, in relation to the area in which the development is to be located. It was agreed that the development appears to be comparable in size to several non-residential buildings nearby and that all are of lesser scale than, for instance, the Barossa Council offices. No evidence was given of a survey of the scale of offices within the town centre to determine scale of office buildings in that zone.
27	Mr Irvine’s opinion assumed that scale was to be considered in relation to the other buildings in Policy Area 34. Commissioner Mosel also adopted this approach in Eastern Building Group Pty Ltd v The Barossa Council. He wrote:

When determining whether the scale of a development is contemplated in particular circumstances (in this case ‘small scale’ in accordance with Objective 2) among the considerations would be the scale (both physical and operational intensity) of development that on the face of it is intended for the Zone or locality in which it is proposed, the ranking of the particular development against like land uses and its scale relative to the surrounding within which it is intended to be situated.

28	This approach is adopted here. The building is clearly of a comparable scale to the relatively small scale, older houses in the area and is therefore of an acceptable scale.
29	Mr Irvine was also of the opinion that the Development Plan implied that non-residential development should be smaller in scale than other buildings in Area 34. There appears to be nothing in the plan to support this view.
30	As the building is to remain unaltered in appearance and the appearance of the building is desired in the zone, it can be assumed to be "benign in aspect" if "aspect" refers to appearance. The proposed operating hours also limit its effect on adjacent units, and traffic generated by the proposal has already been argued to be slight.
31	Since the use of the proposed offices remains unspecified it is unclear if they would, or would not, "serve the needs of the local community".

32	In addition, Objective 6 states:

Maintenance and enhancement of:

(a) a substantial residential character and amenity;

(b) areas of distinctive historical character; and

(c) natural or cultural features, including stands of trees, landscaping, historical buildings and watercourses.

Principle 10 reinforces these objectives. It states:

Development for non-residential purposes should only be undertaken where:

(a) the proposed activity is not liable to detract from the residential character and amenity of the zone;

(b) the design and appearance of the buildings are in keeping with the scale of residential development; and

(c) adequate off street car parking is provided; and landscaping is provided to maintain the continuity of residential street scapes and provide visual buffers.

33

The proposed development of the building conforms to the policy provisions of the Plan as they apply to the form of buildings in the area.

34

The future development of the site is more problematic. In its present cleared state it visibly detracts from the residential area. Mr Brunning agreed that the car parking also might give the site a non-residential appearance. It was indicated at the hearing that landscaping proposals could be prepared at a later date. Present plans are inadequate. At this stage, the treatment of the site does not enhance Policy Area 34. It is not "benign in external impact". (Objective 2 of the Residential Zone). It does not fulfil the conditions of Objective 6 in the same zone. It does not maintain and enhance the area. Further it is at odds with Principle 10(a) and (d) of the Residential Zone.

Conclusion

35	The Residential Policy Area 34 – Tanunda North Historic desires maintenance and enhancement of a special and desired character. Therefore, it follows that retention of the dwelling and with a residential use are the most desirable outcomes in terms of the Plan. However, the residential amenity of the site is reduced by its position next to the Town Centre Zone and on a secondary arterial road.
36	The maintenance of the building is more desirable than the maintenance of the residential use. This proposal will retain the building. Therefore, the proposed use of it would be consistent with what is encouraged in the Plan but only if the proposed development maintains the character of the area.
37	By Memorandum dated 24 October 2007 I invited the parties to confer and make further submission to the Court regarding conditions of consent.

Determination

38	The appeal is allowed. Development Plan Consent is granted subject to the following conditions.

1. The development shall be undertaken in accordance with the application documents lodged with and forming part of the application and (subject to the relevant modifications to the original application documents) the Site Plan marked Exhibit A6 and the Landscaping Plan marked Exhibit A7, subject further to the conditions that follow. The distance between the driveway and the northern boundary shall be a minimum of 1.2 metres, and not 0.6 metres as shown on the Site Plan (Exhibit A6).

2. The hours of operation of the office shall be restricted to between 8.30am and 5.30pm on weekdays and Saturdays and the office shall not operate outside these approved hours without the prior written approval of the Council.

3. Any exterior lighting must be low-level lighting so as to prevent any light overspill into adjacent properties or roads.

4. All landscaping shall be undertaken in accordance with the approved Landscape Plan marked Exhibit A7. All landscaping shall be maintained in good health and condition at all times and any dead, diseased or dying plants shall be replaced forthwith with the same or similar species to the reasonable satisfaction of the Council.

5. Landscaping shall be established not later than the first planting season after the building works are completed or the building is occupied, whichever is the sooner.

6. Any modification or works required to adjoining roads, kerb or footpaths shall be approved by the Council in writing prior to the commencement of works and shall be undertaken and completed to the reasonable satisfaction of the Council.

7. The swale drain situated in the garden bed shall be maintained and kept clear of all litter and debris so as to remain effective at all times, all to the satisfaction of the Council.

39	There will be an order to that effect.