BAYSPRING P/L v CITY OF CHARLES STURT [2008] SAERDC 89 (22 December 2008)

Last Updated: 23 December 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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BAYSPRING P/L v CITY OF CHARLES STURT

[2008] SAERDC 89

Judgment of Her Honour Judge Cole, Commissioner Green and Commissioner Hutchings

22 December 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against refusal by Council of an application for development approval for a supermarket and shops at ground floor level, with residential apartments on three floors and associated car parking - issues in relation to bulk, scale and height of the proposed building, traffic safety concerns and whether proposed development would have any adverse impact on the State and Local Heritage Places in its vicinity - decision of Council reversed - development plan consent granted subject to conditions.

Development Act 1993, referred to.

BAYSPRING P/L v CITY OF CHARLES STURT
[2008] SAERDC 89

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Bayspring Pty Ltd (“Bayspring”) applied to the City of Charles Sturt (“the Council”) for development plan consent for a development proposed for the land at 330A to 352 Seaview Road, and 301 Military Road, Henley Beach (“the site”). The development proposed comprised a supermarket and shops at ground floor level, with 47 residential apartments on three floors above ground level and undercroft, basement and ground level parking. The Council refused to grant development plan consent to the proposed development, and Bayspring appealed against that refusal.
2. At the hearing of the appeal, evidence was given in Bayspring’s case by Mr Weaver, a traffic engineer, Mr Smith, a planner, Mr Schulz, a heritage architect, Mr Loucas, the project architect, Mr Paterson, a crime prevention consultant, and Ms Nolan, a town planner. Ms Bell, a town planner, and Ms Vines, a heritage architect, gave evidence in the Council’s case. Mr Hayes QC appeared for the Council, and Mr Henry appeared for Bayspring. The Court took a view of the site and the locality with the parties.

The Land

3. The site has a frontage to Seaview Road, Military Road and Main Street, Henley Beach. The site is an irregular, flagpole shape. It runs from Main Street north up Military Road for 125.25 metres. The frontage to Main Street (the southern portion of the site) is 29.53 metres in length. The northern portion of the site goes through from Military to Seaview Road, and the Seaview Road frontage is 52.81 metres in length. The total area of the site is 5,870m². The proposed building is to be sited on that portion of the site situated between Seaview and Military Roads. That part of the site has recently been almost entirely cleared of buildings. It formerly accommodated shops, including two very small supermarkets, and a restaurant. The southern most part of the site, which is presently disposed as a carpark, together with the rear of the shop building which presently fronts Seaview Road, will be regraded and upgraded as a ground level carpark which will be integrated with the undercroft and basement carpark which is to be part of the proposed building.

The Locality

4. Each of the town planners and the architects identified a locality for the purpose of assessing the proposed development. The localities were all slightly different from one another. Nothing turns on the differences. We adopt Ms Nolan’s locality, which was among the most extensive, because it seems to us that it encompasses the whole of the area within which the proposal will have a visual impact. Ms Nolan’s locality extends about 400 metres to the north along Seaview Road, about 200 metres to the south of Main Street, to the east along the full length of York Street, and to the west up the Henley Beach jetty, taking in Henley Square.
5. The character of the locality is mixed. Henley Square is an important focal point for the locality. The locality includes a number of local heritage places and two State Heritage places, being the Ramsgate Hotel on the south eastern corner of Main Street and Seaview Road and the Temple Uniting Church on the western side of Military Road slightly north of the site. The southern portion of the locality includes the Hotel, shops and restaurants, including the restaurants around Henley Square. There are also offices and dwellings. The northern and eastern portion of the locality is characterised by dwellings of a wide variety of sizes and ages. Seaview Road is an arterial road and carries in the order of 9,700 vehicles per day. Military Road is a major collector road, and carries a number of bus routes.

The Proposed Development

6. The proposed development comprises a building, containing a 2540m² supermarket and 505m² of specialty shops at ground level, 47 apartments in three levels above ground level, an undercroft carpark of 84 spaces, a basement carpark of 118 spaces, and the grading and upgrading of the existing carpark off Main Street, which will have 43 spaces.
7. The proposal is shown on a series of 18 plans tendered in evidence. The building is a contemporary design, using “Brighton lite” concrete, mineral coated aluminium louvre privacy screens, marble wall panels and blue glass. The ground floor edge of the building along the Seaview Road frontage will be close to the Seaview Road boundary of the site. The boundary is at an angle, and the building will be stepped to accommodate that angle. Verandah canopies are proposed for a substantial proportion of the Seaview Road frontage. The ground floor edge of the building along the Military Road frontage will be on the Military Road boundary, and will include the loading dock for the supermarket component of the proposed development. The first two floors of apartments are to be set back more than 20 metres from the Military Road boundary, and the third apartment floor is to be set back about 24 metres from the Military Road boundary (excluding balconies). On the Seaview Road frontage, the first two floors of apartments will be stepped back slightly relative to the supermarket frontage, and the third floor of apartments will be stepped back some 6 metres from the supermarket frontage (excluding balconies). The roof is to be a series of 5 pairs of wing shaped elements, which will carry photo-voltaic solar panels.

The Development Plan

8. The site is within the Neighbourhood Centre (Henley Square) Zone (see Map ChSt/18). That Zone is divided into two policy areas; Policy Area 51 and Policy Area 52 (see Map ChSt/40). Policy Area 51, which is called the Henley Square Historic (Conservation) Policy Area, is centred on Henley Square, and includes the properties adjacent to Henley Square. Policy Area 52, which is called the Retail/Mixed Use Policy Area, wraps around Policy Area 51 on all sides except the sea side. The site is within Policy Area 52, and comprises a substantial portion of that Policy Area.
9. The Development Plan for the Council contains many provisions which are relevant to the assessment of the proposed development. They are listed and quoted in the statements of the experts who gave evidence at the hearing in this matter.

Assessment

10. It is common ground that the land use proposed is appropriate for the site.
11. Many of the concerns the Council held in relation to the proposed development have been overcome by Bayspring by means of amendments to the plans or the provision of further information. By the end of the hearing, concerns about traffic safety, the adequacy of carparking and the convenience for users of the carpark layout had all been resolved. It was common ground that the Council’s concerns about lighting and crime prevention could be addressed, in the event that the proposed development were to be approved, by appropriate conditions being imposed upon the development plan consent.
12. Ms Bell maintained her concern that the carpark layout, particularly in relation to that part of the carpark which will have a frontage to Main Street, would not be convenient for pedestrians to use, particularly if they have a shopping trolley or a pusher. We are satisfied that the carparking layout is appropriate, and will be sufficiently convenient for pedestrians. We accept Mr Weaver’s evidence in relation to traffic safety, the adequacy of carparking and the functioning of the carparks.
13. The remaining issues concern the bulk, scale and height of the proposed building, the interface between the Military Road frontage of the proposed development and the Residential Historic (Conservation) Zone to the east of Policy Area 51 and the impact of the proposed development upon heritage places and heritage areas.

Bulk, Scale and Height of the Proposed Building

14. Ms Bell and Ms Vines both consider that the proposed building is higher than the Development Plan envisages for the site. Principle of Development Control (PDC) 5 for the Neighbourhood Centre (Henley Square) Zone says:

Development should not exceed a height of 10.2 metres from natural ground level at any point. Where desirable to add visual interest to the appearance and roof form of the building, a gable roof form or parapet (which does not contain any habitable space) may penetrate the 10.2 metre height to a minor extent.

15. The Residential Zone (Western Edge Policy Area 3) abuts the site to the north. PDC 1 for that Zone seeks dwellings, including residential flat buildings, at medium densities. PDC 17(f)(ii) for that Zone says:

The building is erected within the building envelope in Fig R/6 unless varied by the following and provided that:
(f) Three storey buildings are appropriate where located in:
(ii) the area bound by the Neighbourhood Centre (Henley) Zone, Military Road to North Street, Seaview Road, Marlborough Street and Esplanade;
subject to the building height being no greater than 10.2 metres. Where desirable to add visual interest to the appearance and roof form of the building, a gable roof form or parapet (which does not contain any habitable space) may penetrate the 10.2 metre building height to a minor extent.

16. We take it that the Neighbourhood Centre (Henley) Zone referred to is the Neighbourhood Centre (Henley Square) Zone. There presently exists on the land immediately to the north of the site a block of flats which is approximately 12.47 metres above the level of Seaview Road.
17. To the east of the site, and abutting it for a short distance, is the Residential Historic (Conservation) Zone (Henley Policy Area 20). This Zone contains the Temple Uniting Church at 214 Military Road, which is a State Heritage Place located a short distance to the north of the site, together with several Local Heritage Places and numerous contributory places. The provisions of the Residential Historic (Conservation) Zone place emphasis upon the desirability of maintaining and complementing the existing historic character of the Zone. That part of the Zone to the east of the site is generally single storey development.
18. PDC 3(b) for Policy Area 51 provides:

Buildings and additions should:
(b) be consistent with and no greater than the height of surrounding heritage buildings. No building should exceed the height of the Ramsgate Hotel.

19. Ms Bell referred to Council wide PDC 219, which deals with the height of development sites abutting residentially zoned sites. Ms Bell also referred to Council wide PDC 129, which says:

The form of ... buildings of three storeys height or greater above natural ground level at any point on the site, should be designed to reduce the visual impact of the extra height of the third storey or above by:
(a) providing differentiation in elevational treatments to reduce overall building bulk and enhance streetscape character;
(b) articulating the building elevation and avoiding large, unrelieved walls;
(c) incorporating balconies, verandahs or other elevational treatments to add interest to the building and reduce its apparent bulk as viewed from a public road or the coast, and
(d) increasing setbacks to side and rear boundaries at upper levels.

20. Ms Vines’ objection to the height of the proposed building related to her perception that it would contribute to making the building too dominant an element in the locality, especially having regard to the heritage value of individual buildings and areas in the locality. Ms Vines thought that the building would be too high for too great a width. The concerns of both Ms Vines and Ms Bell with respect to the height of the building related to the Seaview Road frontage. The building height at the Military Road frontage will be well within the upper height provided for in PDC 5 for the Neighbourhood Centre (Henley Square) Zone.
21. The directly applicable provisions of the Development Plan concerning height all refer to natural ground level as a starting point. This is unhelpful in relation to the site with which we are here concerned, because the land form, which would originally have been a sand dune, was modified long ago. It is not possible now to ascertain precisely what natural ground level might have been, and neither would it have been possible at the time that the provisions of the Development Plan which use the term were introduced. We accept the evidence of Mr Smith, based upon his research into topographical information about the site and the land around it, that it is probable that the original sand dune on the site varied between 7.5 and 9.5 metres above AHD at the northern end of the site, and between 7 and 7.5 metres above AHD on Seaview Road abutting the existing shops.
22. Ms Bell, in assessing the height of the proposed building, chose to take as her starting point a straight line between the height of Seaview Road, which is at approximately 7.1 metres above AHD, and Military Road, which is some metres lower. Ms Bell’s starting point was neither natural ground level, finished ground level nor existing ground level. There is no sensible justification for this approach, and we reject it.
23. The ground of the site presently rises in places in the order of one metre above street level. We do not consider that it was intended by the drafters of the development plan that “natural ground level” be the level of the road. It is readily apparent that the ground east of Seaview Road rises to a level above it.
24. The Development Regulations, in Schedule 1, define “building height”:

“building height” means the maximum vertical distance between the natural or finished ground level at any point or any part of a building and the finished roof height at its highest point, ignoring any antenna, aerial, chimney, flagpole or the like.

25. Mr Smith said, in his statement:

The building is to have maximum levels of 20.25 metres AHD or thereabouts, at the uppermost point of the “winged” roof element, and a height varying between about RL 18.95 (ceiling level) and 20.25 metres along most of the Seaview frontage.

26. We accept this assessment. It means that the height above Seaview Road to the top ceiling level is about 11.85 and the height above Seaview Road to the tip of the winged roof element is about 13.15 metres AHD. We do not consider, however, that the level of Seaview Road was intended to be the starting point for the calculation. We consider that a level at least one metre higher than the level of the road was intended to be the starting point.
27. Mr Hayes argued that the figure of 10.2 metres was intended to indicate that buildings should not be higher than three storeys high. There are Development Plan provisions which link the 10.2 metre height with three storeys. We reject Mr Hayes’ argument on this point. We can see no planning purpose to be served in a limitation on the number of storeys of a building in this context. A height limitation by reference to a measurement has been chosen to indicate the scale of building intended for the area.
28. The height levels provided for in the Development Plan are important provisions. However, they must be read in conjunction with all of the other relevant provisions, and with the desired future character statement for the relevant area. They should not be applied as if they were mandatory provisions. The provisions regarding height levels are one factor in an assessment which must also take into account the physical characteristics of the site and the buildings around it, as well as the existing character of the locality. Having regard to all of those matters, we do not consider that the fact that the proposed building will exceed the height provided for in PDC 5 for the Neighbourhood Centre (Henley Square) Zone and in Council wide PDC 219 is fatal to it. The visual impact of the height of the proposed building will be significantly ameliorated by the setback of the third residential storey from the ground floor front building line. In our assessment, the height of the building will be in proportion with the building’s width viewed from all vantage points, including vantage points to the west, and the height of the building will not cause the building to dominate the locality or Policy Area 51.

Heritage/Military Road frontage

29. The desired future character statement of Policy Area 52 says:

This Policy Area surrounds the historic centre of the Zone and comprises a mix of uses, such as a small supermarket and a wide range of shops, offices, restaurants and other uses. Additional activities which reinforce existing uses are appropriate, as well as shop top housing.
Development should be built to the street frontage and of contemporary modern design. Car parking should be to the rear or side of premises and where possible, shared. The pedestrian environment should be enhanced with verandahs, pergolas and awnings to provide pedestrian protection.

30. There are two principles for Policy Area 52. Principle 2 designates the former police station at 206 Military Road, which is opposite the site, as a Local Heritage Place. Principle 1 says that development should be in accordance with the desired future character of the policy area.
31. The proposed development conforms closely with the desired future character of Policy Area 52.
32. Both Ms Bell and Ms Vines were of the view that the proposed building would be incompatible with the adjoining areas, and in particular with the Residential Heritage (Conservation) Zone to the east and Policy Area 51 to the west. Ms Bell and Ms Vines were particularly concerned about the interface between the Military Road frontage of the proposed development and the Residential Heritage (Conservation) Zone. The Residential Heritage (Conservation) Zone abuts the site for only a short distance at the north east corner of the site. For most of the eastern boundary of the site, the properties on the other side of Military Road are within the Neighbourhood Centre (Henley Square) Zone, and the desired future character for Policy Area 52, quoted above, applies to those properties. The Military Road frontage of the proposed development, which includes the loading dock, will be visible from the properties on York Street. We do not consider, however, that this will compromise the amenity or character of those properties, or interfere with the achievement of the objectives of the Residential Historic (Conservation) Zone. Ms Vines and Ms Bell viewed the Military Road frontage of the proposed development as being too much of a service area. They would both have preferred to see an “active frontage” to Military Road, so that that frontage would, for example, have shop fronts. The use of the site for a supermarket and specialty shops is in conformity with the objectives of the Zone. Supermarkets and specialty shops must be serviced from somewhere. The options in relation to this site are Main Street, Seaview Road and Military Road. It seems to us that the Military Road option chosen is by far the best option, and, in any event, is an acceptable option.
33. Ms Bell and Ms Vines both thought that the supermarket proposed would be too large, and that the size of the supermarket was the cause of many of the aspects of the development they considered to be unsuitable. Ms Nolan’s evidence was that a supermarket of 2,540m² was on the smaller end of the scale of what is expected in a Neighbourhood Centre. We accept Ms Nolan’s evidence in this respect. We consider that the supermarket proposed is an appropriate size for the Zone and the Policy Area.
34. Council wide PDC 184 says:

Development adjacent to or within the vicinity of a State or Local Heritage Place should respect and complement the character of such a place in terms of scale, built form, materials and external finishes, and contribute positively to the value of the heritage place.

35. We do not consider that the proposed development will have any adverse impact on the State and Local Heritage Places in its vicinity. The Development Plan seeks development of a contemporary modern design in Policy Area 52, and the proposed development is of such a design. The Seaview Road frontage of the proposed building, which runs close to the property boundary, together with the verandahs proposed for that frontage, will contribute to the achievement of the ambience sought in Policy Area 52.
36. The Desired Future Character Statement for Policy Area 51 seeks a lower scale of development for that Policy Area than for Policy Area 52. Mr Schulz assessed the impact of the proposed building on the heritage places and the heritage areas. He said, in his statement:

... the proposal utilises techniques that are typically employed in classic architecture and can be readily seen in the surrounding heritage places, in particular the State Heritage listed Ramsgate Hotel. Both buildings provide a clearly defined base, middle and top to the overall building form. This overall form is then articulated in several hierarchical layers, from the broader overall architectural rhythm, to the creation of general depth and shadow, to the finer grain use of materials and specific detailing.
While the proposal generally utilises differing materials and external finishes, I do not consider this to be of consequence in terms of its compatibility with the surrounding heritage places, as a successful built for [sic] relationship can be achieved through the careful use of a select few techniques. Overuse of replicating techniques can often result in tokenistic, literal, or compromised built form solutions.
The approach utilised by the proposed development also creates a compatible ‘urban texture’ which I also consider to be highly relevant to achieving a compatibility to surrounding built form (CW PDC 25, 27; NC(HSq)Z PDC 4), heritage or otherwise, than the simplistic replication of roof forms, window proportions or use of specific materials [sic].
Coupled with this, the development’s provision of additional activity, colour, form, population and urban texture to the locality, which is consistent with that of the broader surrounds, continues the historic ongoing pattern of the development which I feel [sic] an essential element to the broader cultural landscape setting to the heritage places.
In this context, I am satisfied that the proposal’s scale, built form, materials and external finishes are both respectful and complementary to the heritage value of the State and Local heritage places in the HSqH(C)PA, and that the continuation on the ongoing historic pattern of development contributes positively to the value of the heritage place (CW PDC 184, NC(HSq)Z DFC, Obj 6, PDC 6).

37. We accept Mr Schulz’s evidence.

Summary and Conclusion

38. The proposed use of the site is in conformity with the objectives for the Neighbourhood Centre (Henley Square) Zone and Policy Area 52. Having regard to all of the evidence, and to the relevant provisions of the Development Plan, in our assessment the proposed development has an appropriate and functional layout. It is of an acceptable design, height, bulk and scale. It will not have an adverse impact upon any Local or State Heritage Place, nor will it have an adverse impact upon Policy Area 51 or the Residential Heritage (Conservation) Zone. The proposed development will enliven the Seaview Road frontage of the site and assist in the creation of the ambience sought for the area by the Development Plan.
39. The decision of the Council to refuse to grant development plan consent to the proposed development will be reversed. Development plan consent will be granted to DA 252/3093/07.
40. A memorandum in the above terms was provided to the parties. The parties conferred in relation to conditions and made submissions to the Court. The development plan consent will be subject to the following conditions:
    1. The proposal shall be developed in accordance with the details and approved plans forming exhibit A1 in ERD 164/08, together with the stormwater and site management plans referred to in Conditions 21 and 22 below, except where varied by the conditions herein, and shall be completed prior to the buildings being occupied.
       
    2. All parking areas must be marked in a distinctive fashion, to delineate the parking spaces, prior to the occupation of the proposed development.
       
    3. All car parking spaces, driveways and associated manoeuvring areas shall be sealed in bitumen, concrete or brick pavers prior to the occupation of the proposed development.
       
    4. The proposed car parking layout and access areas are to conform to the Australian/New Zealand Standards 2890.1:2004 for Off-Street Parking Facilities.
       
    5. The proposed landscaping shall be established on the site in accordance with the approved plan prior to the occupation of the development, and it shall be maintained and nurtured at all times by the applicant or person(s) obtaining the benefit of this consent, with any diseased or dying plants being replaced. Trees shall be a minimum height of 1.5m at the time of planting.
       
    6. The hours within which the proposed development is permitted to operate shall be as follows:
       

Supermarket

Monday to Friday 7.00am to 9.00pm

Saturday 8.00am to 5.00pm

Sunday 11.00am to 5.00pm

Retail/Speciality Shops numbered 1-15

Every day excluding Thursday 7.00am to 6.00pm

Thursday 7.00am to 9.00pm

7. The underground carparking areas shall be open for use between 7.00am to 11.00pm on Monday to Thursday, 7.00am to 2.00pm the following day on Friday and Saturday and between 7.00am to 12.00 midnight on Sunday.
   
8. The loading and unloading facilities for commercial vehicles must conform with Australian Standard 2890.2-2002.
   
9. Delivery trucks shall only access the site between 7.00am and 5.00pm Monday to Friday and 9.00am to 5.00pm Saturday, Sunday and Public Holidays.
   
10. The access points to the underground car parking area and the delivery area must be appropriately and clearly marked with signs to prevent confusion or conflicts between delivery vehicles and passenger vehicles and to prevent unwanted vehicle movements.
    
11. The proposed building must be treated with an anti-graffiti application at ground floor level prior to its occupation.
    
12. Proposed access points shall comply with the criteria for safe intersection sight distance as specified by the Austroads Publication, Guide to Traffic Engineering, Part 5 - Intersections at Grade.
    
13. Delivery/service vehicles shall enter and exit the loading dock area by means of a left in and left out movement only.
    
14. Lighting shall be provided under the cantilevered verandah and canopy along Seaview Road to illuminate walkways prior to the occupation of the development.
    
15. Loading dock doors must be closed at all times except during the entry/exit of vehicles.
    
16. The loading dock panel lift doors must be a minimum of 16mm thick.
    
17. All openings in the walls/roof of the loading dock must be acoustically treated. This includes any louvres, which must be Fantech SBL 2 or acoustic equivalent, having the following sound transmission loss:
    

	Static Insertion Loss Octave Band Centre Frequency
Fantech SBL2	63	125	250	500	1000	2000	4000	8000
Sound Transmission Loss	5	10	14	22	27	25	21	17

18. The angled exit point leading from the at-grade car park and Military Road must be increased to 45 degrees to reinforce the left only movement onto Military Road.
    
19. The plantings adjacent to the building must not interfere with the sightlines in and out of the carparking areas or the unloading areas. Ground cover must be kept below one metre in height and taller plantings must have clean trunks (clear of branches) to a height of two metres at all times.
    
20. Closed circuit television cameras must be installed in the places designated on the approved plans and monitored by an appropriately qualified firm during normal business hours. A security guard shall be engaged by the applicant to monitor the land after normal business hours until the closing time of the underground car park.
    
21. The applicant must prepare and submit to the Council a stormwater and site management plan and computations in accordance with Council’s Development Information requirement Guide No. 9, Stormwater Drainage Plan and Guide No. 3, Site Plan and to the satisfaction of the Council. In accordance with Guide No. 9, on-site stormwater detention must be provided based upon the post development peak rate of run-off from the design storm not exceeding that from the pre-development site from a 5 year ARI storm. The design storm requirement is for a 100 year ARI storm. All stormwater runoff generated by the proposed development must be collected and disposed of without jeopardising the safety of the adjoining road network. In order to contain major storm street gutter flows, measures must be specified to form a continuous barrier along or near and within the frontage of the land (including the driveway) at a minimum of 300mm (c.f. proposed 225mm for the access ramp to the undercroft) above the adjacent street WT levels.
    
22. Measures must be incorporated to minimise the risk of failure during a storm of undercroft/basement pump systems, such that:
    

22.1 It must be demonstrated that the system will protect the building from inundation from a 100 year ARI storm over the site.

22.2 Two pumps shall be provided, each capable of the design flow rate.

22.3 The pumps shall be configured to automatically alternate as the duty pump.

22.4 The system shall be configured to automatically revert to the alternative pump should the duty pump fail; and

22.5 Either a back-up power supply or a safe power failure storage (below and/or above ground) with a volume equal to a 5 year ARI, 4 hour duration storm run-off without pump operation and without flooding of buildings, under-crofts or any properties, shall be provided.