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ALEXANDER v DISTRICT COUNCIL OF ROBE [2009] SAERDC 4 (27 January 2009)

Last Updated: 30 January 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA


DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.


ALEXANDER v DISTRICT COUNCIL OF ROBE


[2009] SAERDC 4


Judgment of Commissioner Green


27 January 2009


ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - refusal by the Council - recreation hall, parking, earthworks, vegetation removal and enhancement - Recreation (Lake Fellmongery) Zone - Conservation Area - General Bushfire Risk Area but assessed as high risk - zoning and land use/purpose; visual and aural amenity impact; vegetation removal, revegetation enhancement; bushfire risks; hazard and safety; stormwater management details; access and car parking; and flooding/sea level rise/floor levels all considered - land use/zoning test met - appellant afforded opportunity to provide more detail and to rectify/substantiate the proposal against certain key issues - further material received, evidence taken and submissions made - proposal remains unsatisfactory with regard to visual impact; vegetation removal and revegetation in the light of bushfire risks and hazards; sited floor levels regarding sea level rise, flooding and stormwater flood events - sufficiently at variance to the Development Plan - refusal justified - decision of the Council upheld - appeal dismissed.

Development Act 1993; Environment Protection Act 1993, referred to.

Town of Gawler v Impact Investment Corporation Pty Ltd (2007) SASC 356; Mar Mina v City of Marion [2008] SASC 120; Koker v City of Port Lincoln [2006] SASC 55, considered.


ALEXANDER v DISTRICT COUNCIL OF ROBE
[2009] SAERDC 4


THE COURT DELIVERED THE FOLLOWING JUDGMENT:


  1. This matter is an applicant appeal on behalf of the owner, The Uniting Church in Australia Property Trust (SA), (the Church hereafter), against the decision of the District Council of Robe (the Council), to refuse Development Application No. 822/042/07 made under the Development Act 1993, seeking Development Plan Consent for a recreation hall, associated parking, earthworks and open recreation space in association with a long-standing youth camp use at Main Road, Robe.
  2. The Council refused the application citing numerous Development Plan criteria, at p 32 of Exhibit R1, but these provided no real reasons explaining the refusal. As has been said before by the Court, that approach is not adequate or fair to the applicant or the community, and a description of actual reasons is necessary.
  3. A summary of some of the relevant details in this matter is as follows:
Registration date of application:
18 May 2007
Subject land address:
55 Main Road, Robe
Existing use:
Tarooki Youth Camp (tourist accommodation of a kind) and approved church and multi-use facility (DA 822/106/06 – approved 1 February 2008)
Proposal:
To erect a recreation hall with associated car parking, earthworks and open space, as well as removal of certain trees in association with the existing use
Relevant authority:
District Council of Robe
Relevant/appropriate Development Plan:
Robe (DC) consolidated version 11 January 2007
Relevant Zone/Area:
Recreation (Lake Fellmongery) Zone – RLFZ hereafter – refer MAP Ro/10 and /Conservation area on MAP Ro/1 (Overlay 1) (Enlargement A)
Date of decision:
1 February 2008
Appeal registered:
27 March 2008
Conference concluded:
12 May 2008

  1. The Court viewed the subject land and the locality on Monday, 11 August 2008 in the presence of the parties. The matter was heard in Robe and witnesses providing evidence to assist the Court comprised, for the appellant, Mr G Alexander (the designer and a building surveyor, but who is not an expert town planner, landscape architect, architect or fire safety expert) in his report contained in Exhibit A3; and Mr D Wright (an experienced expert town planner in the employ of the Uniting Church – refer Exhibit A2, who acknowledged that his evidence may be perceived to be biased given his role and relationship with the Church); and in the Council’s case Mr D Hutchison, an experienced consultant town planner (refer Exhibit R3), an authorised person for the Council and one who is regularly engaged by the Council for town planning advice and services.

The Subject Land


  1. The land comprises mostly Section 492 with an area of some 8,099 square metres and use of part of the lease licence No. 68, area “A” part of the drainage reserve section 393, an area of some 2,200 square metres providing a total area in the irregular shaped parcels of some 10,800 square metres. The site has a frontage of some 108 metres to Main Road and at a point to the made part of Barrowmans Drive.
  2. With regard to the access, Mr Hutchison was of the opinion that the proposed access arrangements were not ideal but he was satisfied that they provided a reasonable guarantee of long-term access to the land. The lease licence referred to has a term of 25 years and provides the Church with the right of access over the land and for the provision of up to 16 car parks.
  3. The main part of the subject land, Section 492 Hd. of Waterhouse is utilised and has been since approximately 1956 on the evidence, for a camp facility containing a number of existing structures including a dining hall-kitchen in a T-shaped building of iron cladding and having a floor area of some 400 square metres in total, and with northern and southern accommodation wings sleeping 60 persons in dormitory style, and with other ancillary buildings including sleeping quarters for supervising persons (eight people) – refer photo figure 2 in Exhibit A2; and informal unsealed parking areas about the land. The facilities are, on the evidence, predominantly used by school, church, family and sporting club groups; some are regulars from year to year.
  4. The recently approved Church and so-called multi-use conference building is to be constructed in the south-eastern corner of the land together with associated parking of 16 spaces, adjacent to the access driveway on Section 393. That proposal and the development proposal before the Court are part of a larger master plan concept (Exhibit A4) that would eventually see the old iron clad building being removed; new accommodation and dining facilities provided to the north-west side and the central area opened up.
  5. The subject land sits on a relatively low hill located between Lake Fellmongery and the coast with the current main camp building sited centrally on the land occupying the higher part. The land falls towards a depression to the north, which drains to a creek that may be known as Drain L. It was said to fall approximately 6 metres across the allotment.
  6. The land contains scattered native vegetation and Mallee trees in a couple of clusters with low grass understorey together with cleared grassed areas. There is also a row of three large Cyprus Pine trees along a section of the northern boundary - one (the eastern) appears to be in very poor condition and may be dying.
  7. Adjacent the subject land northern boundary (and part of Section 393) is a walking track linking the end of the made part of Barrowmans Drive to the coast, a caravan park and residential use to the east. It passes through a lower lying area to the north of the northern boundary of the subject land, some of which is swampy with paperbark trees and thick understorey.

Development Proposal


  1. The development proposal, as amended post the Council’s Development Assessment Panel decision – Exhibit A1 - is to erect a recreation hall, with associated earthworks, parking area and open space development, to be used in conjunction with the other facilities both existing on and approved for the subject land. Funding under the Fishing Community Assistance program is being sought.
  2. Noteworthy, is the aspect of the proposal that would see the recreation hall only being used by persons attending and using the site for camping-residential purposes and not to be made available for hire other than in conjunction with the hire of the other facilities located on the camp site. The applicant also indicated that he, on behalf of the Church, would accept a condition to that effect. Hence, the proposal is for the better enjoyment by existing camp users, rather than for use by new users – other people. Unusually, no toilet or change room facilities are to be provided in the building with reliance placed on those in existing buildings to the south and south-west. With improved facilities, a goal of the Church/management committee is to increase occupancy and use of the camp facility.
  3. The building is to have dimensions of some 19.7 metres by 30 metres, an area of some 591 square metres and with a wall height (reduced from earlier versions of the plan) of 6.0 metres. The appellant and his other witness assert that the dimensions of the building are based upon the creation of a floor area which would meet the practical needs of a recreation facility to be used in conjunction with the camping facilities for 68 persons and with recreational (not competitive/club) basketball one of many such activities, with the floor area and height designed to meet this need specifically but many other needs in general. It is for active indoor space for use by campers. It was said by the appellant or his other witness that the approved Church-multi purpose building not yet constructed, would not be adequate for those purposes and needs.
  4. A verandah is included to the northern elevation of the building. An additional doorway (accessed via an external stairway) is also included to the eastern end of the building to improve the functional relationship between the proposed building and other existing buildings on the site to the south.
  5. The floor level of the building said to be (AHD 4.0 metres), aligns approximately with the natural ground level near the northern boundary about 1.5 metres above (on the evidence) a high water mark adjacent and to the north-east. It has been sited to minimise visual impact on the site and to preserve views from the existing dining room/activity room (further up the slope) to be maintained across it and toward the sea to the north.
  6. The building setback to the northern boundary, as amended, has been increased and is to be some 3 metres to the verandah and 4.2 metres to the main wall of the building. At least 2 of the 3 Cyprus Pine trees are to be removed to facilitate the building development and minimise safety risks to users moving around the perimeter. The most north-western of the trees may be capable of retention, acknowledged by the appellant, although that was not the original intention. It is mostly a generally cleared, open area within the camp site.
  7. The building would be constructed with pre-cast tilt-up concrete walls, which would be a grey cement colour. A large portion of the walls would be located below natural ground level and it is intended that the colour of the walls match and complement the galvanised corrugated iron walls of the existing main building – a rustic look.
  8. There would be a low-pitched roof for the proposed building (providing a height to ridge line of approximately 7 metres), and to the verandah roof, both to be constructed with dark Colorbond custom orb material (likely to be a dark grey).
  9. The (increased) setback from the northern boundary is intended to allow for some screen planting to occur between the building and the site boundary, together with a paving strip. Additional planting is also envisaged to take place on the adjacent Crown land between the existing pedestrian pathway and the site boundary.
  10. The plans numbered A01 and A09 (Exhibit A1) show certain areas where existing native vegetation is intended to be “thickened” with additional native planting.
  11. Such plan also shows portion of the site as “an existing cleared area to be levelled as an over-flow car parking area”. The evidence was that it is to be of an informal style as per parking areas elsewhere on the land to cater for some 16 car spaces and available for use by users of the Church but apparently additional to the spaces required as part of the approved Church proposal.
  12. Four large (5,000 gal.) rainwater tanks are proposed adjacent the pedestrian walkway at the eastern end of the building to be utilised and if necessary modified to be used for fire fighting purposes in emergencies (with a plan note to that affect).
  13. Finally, filling from the excavations required for the hall is to be spread on ground to the west to partially level that area, including back-filled up against the new hall walls, and to be used as an informal outdoor open recreational space.

The Locality


  1. Comprising that part of the surrounding area that is likely to be impacted upon by the proposal and that impacts on the proposal in the reverse direction, and in this matter to be based on a visual, aural, traffic and character basis, I have noted that defined by Mr Hutchison (generally accepted by Mr Wright). I accept it as being reasonable from my observations on the view, though it could perhaps extend more to the north for an indefinite distance – perhaps 100 metres. The subject land is bordered to the west by the Residential Zone, within which are two detached dwellings on individual allotments (one also used for bed & breakfast accommodation for tourists/visitors). Opposite to the south is Lake Fellmongery seen from parts of the subject land through native trees. There is undeveloped bush and coastal land to the north and east, and with Main Road (a “primary arterial road” in the Development Plan), being to the south and with Lake Fellmongery further to the south. However, it is by no means a “wilderness” with many man-made interferences, intrusions and activities.
  2. The locality has, largely, a natural, well-treed character and amenity levels (in both the public and private realms) are high due to the character so described and particularly the coastal proximity and partial views to lakes or the coast.

Relevant Development Plan Provisions


  1. I have had regard to the expert and other evidence and the submissions, and I find that following are the provisions in the relevant Development Plan providing guidance, particularly with respect to the key issues in focus in this matter. In summary they are as follows:

COUNCIL–WIDE
Objectives: 1, 2, 4, 20, 22, 23, 29, 30, 32, 34, 36, 38, 52, 53, 57, 63, 66-68, 73 and 75; and
Principles of development control: 1, 4-7, 10, 11, 77-79, 124, 139, 147-151, 153, 165, 181, 182, 186, 187, 192, 203, 205, 206, 216, 222, 223, 225-228, 234 and 237.


RECREATION (LAKE FELLMONGERY) ZONE
Objectives: 1-3; and
Principles of development control: 2-4 and 7-9.


Figure Ro(BPA)/9 and Fig Rec (LF)/1 as well as the maps referred to above in the table are also relevant.


Processing


  1. I note that the Council categorised the development proposal as Category 2 and that following notification, one representation from an adjoining owner was received and that it related to a fencing issue. It would also appear that there was no formal consultation undertaken with government ministers or agencies, such as the Coast Protection Board, having regard to Schedule 8, of the Development Regulations 1993.

Assessment Approach


  1. Section 33(a) of the Act requires the relevant authority (the Council) and on appeal the 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.
  2. In terms of s 35 and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Development 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 RLFZ and tested in the specific site and locality context. The Development 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.
  3. Whilst I have noted that the Development Plan guidelines are not mandatory, they are directory and persuasive and it would normally be expected that a planning authority would apply them unless, as a matter of planning judgment, there is good reason to depart. I also have noted the approach of the Supreme Court in Town of Gawler v Impact Investment Corporation Pty Ltd (2007) SASC 356 at para 81 which outlined a 10 point approach to consideration of relevant matters in assessing whether a departure from a clearly expressed policy is justifiable.
  4. As put to me, I have had regard to material rising from Debelle J in Mar Mina v City of Marion [2008] SASC 120, namely:
While not mandatory, the provisions of the Development Plan are directory and persuasive and one would normally expect a planning authority to apply them unless, as a matter of planning judgment, there is good reason to depart from them.

Planning Assessment


  1. I approach the planning assessment having regard to both the expert evidence and to my assessment, and grouped and structured on the following basis:

Zoning (Land Use/Purpose)


  1. The important Zone provisions providing guidance and direction are as follows:
Objective 1: A zone for conservation and recreation purposes.
Objective 2: Accommodation facilities confined to existing locations.
Objective 3: Native vegetation, the lakes, historic buildings and plantings conserved.
PRINCIPLES OF DEVELOPMENT CONTROL
...
  1. Development of the community facilities for youth, should be limited to the existing youth camp, located on the northern side of Main Road. Development on the property should principally be accommodation and ancillary social and recreation facilities.
...
  1. Clearance of native vegetation should not occur on land which is designated on Map Ro/1 (Overlay 1) (Enlargement A) as “Conservation”.
  2. The proposed recreation hall, in conjunction with the long-standing youth camp facilities, is proposed for the recreation purposes of residents/users of the camp and on my reading, and to my mind, this is squarely in accord with Objectives 1 and 2 for the Zone as quoted above. In addition, I do not assess that it would prejudice nor be counterproductive to the partial conservation purpose of the Zone (whether in terms of vegetation – refer to discussion later; or upon the lakes or historic buildings).
  3. I note that there is no so-called desired future character statement for the Zone, nor any material direction for building development with a recreation purpose – whether aquatic based, environmental based, part indoor/outdoor, active or passive in nature, particularly in terms of siting, setbacks, form, scale, height or bulk. All may reasonably be considered and become acceptable in the Zone, subject to sufficient compliance with the dual conservation purpose and other Zone and Council wide guidelines. For this proposal, the only specific, significant Zone guidelines are Principles 3 and 7.
  4. Principle 1, referred to by the Council in its refusal, is not at all relevant to the subject land as it is not shown on the Concept Plan Fig Rec(LF)/1.
  5. Principle 3 is specific and of particular relevance to the subject land given the youth camp reference and the emphasis is for social and recreational facilities to be, principally, ancillary to the youth camp land use.
  6. The word “ancillary” to my mind is directed to use, activities, purpose and linkages with existing uses and users, and unless clearly catering or likely to cater for others, and/or become the dominant use/activity in its own right, built form size is not a significant ingredient. I have also had regard to the definition and interpretation of the word “ancillary” from the judgment of the Supreme Court in Koker v City of Port Lincoln [2006] SASC 55, at para 69, and its reference to a use being subservient, subordinate, auxiliary or providing support to and additional to, in this case, the youth camp facilities. In my experience, such camps frequently have hall/recreational buildings to facilitate indoor recreation, social and other activities.
  7. The youth camp apparently accommodates some 68 persons (beds), and is clearly the existing and intended ongoing raison de etre of the site and for its owner, and the recreation hall would be a building providing weather protection and allowing indoor recreational, social and educational activities, to take the load off a much smaller space currently used but which is primarily the dining room for the camp. The fact that the appellant (for the owner) and facility management committee, is happy to abide a condition that limits its use to only that by existing users (campers/residents), of the youth camp, reinforces the subservient role envisaged for it.
  8. In addition, I note that the proposed recreation hall floor area of some 590 -600 square metres is of comparable size to the existing floor area of the camping facilities as a whole (approximately 500 square metres) but would be less in comparison when/if the approved Church-conference facility building (an additional 250 square metres providing a total existing and approved floor area of some 750 square metres) is built. These floor areas are relatively modest in relation to the size of the site (either the Church land of 8,099 square metres and/or including the access and licensed area of an additional 2,200 square metres).
  9. I find that it is not a disproportionate size in physical terms or in terms of the range of recreation/social needs of users/residents (68 persons) of the camp facility, an average of some 8.8 square metres per person.
  10. Reference to the Building Code of Australia or Building Rules Consent requirements or guides as submitted by Mr Alexander are not useful in assessing appropriateness of the floor area as part of the planning assessment of this application against the Development Plan, though it provides some context.
  11. I assess and find that the proposal is likely to be ancillary to the existing youth camp and approved Church/mixed use development and land uses. If consent were to be granted, a condition limiting use of the recreation hall to the residents/users of the existing camp facilities would be appropriately attached. I note that Principle 3 was not a guideline referred to in the Council’s refusal and I do not agree with the reasoning of Mr Hutchison on it.
  12. In terms of Principle 7, arguably the subject land is covered by a very general depiction of Conservation area on the MAP Ro/1 (Overlay 1) (Enlargement A). In any event, in addition to Principle 7, other Council wide guidelines call for conservation (and enhancement) of native vegetation. Whilst in the eastern corner of the proposed building siting, there would be a need to remove approximately 4-6 small native tree/shrub specimens, I do not consider them to be significant by size, number, nature or biodiversity given the extent of adjacent bushland further to the north and east. I agree with Mr Wright on that. In addition, I heard no expert evidence on the topic. Hence, from my general experience including within Local Government, I assess the extent of the failure to meet the guideline on a fact and degree basis, to be minor and not fatal to the proposal. In addition, whilst needing to be further documented and detailed, additional planting and revegetation is intended to occur in several parts of the site as part of the management of the land and the commitment of the owner to the natural environment, and a large part of the appeal of the camping facility. I do not consider that the size of the building, sited in a largely cleared area is an anathema to the dual-interlinked conservation goal of the RLFZ, in the present circumstances.

Visual Amenity Impacts


  1. A range of Council wide guidelines are relevant and assume greater importance in the absence of any built form guidelines in RLFZ or for non-residential buildings under the Council wide guidelines. Some are very general like Objective 23 (amenity not impaired); others provide slightly more specific guidance, though with, notably, no practical, detailed design guidance. The relevant clauses are:
COUNCIL WIDE
...
Objective 23: The amenity of localities not impaired by the appearance of land, buildings and objects.
...
Objective 32: Conserve Robe township’s historic character, scenic appeal and natural setting.
...
Objective 38: Preserve landscapes of aesthetic merit, including bushland, wildlife habitat, and sites and localities of natural beauty.
...
PRINCIPLES OF DEVELOPMENT CONTROL
  1. Buildings and structures should be sited to minimise any adverse effects on neighbouring development and traffic safety.
...
  1. Development should maintain and enhance residential amenity and should not create a nuisance by overcrowding development on a site, overshadowing, increasing traffic volumes, restricting natural light or altering adversely the character of the locality.
...
  1. Development should not detract from the scenic amenity and rural character of land within the district.
  2. Development should exhibit a high standard of design with regard to external appearance, building materials, colours, siting and landscaping so as to preserve and enhance the character of the locality.
...
178 Development should be landscaped so as to:
(a) screen undesirable elements such as outdoor storage, car parks and utility
infrastructure;

(b) enhance privacy;
(c) provide shade and soften the effect of large paved areas;
(d) create a buffer between incompatible development; and
(e) enhance the appearance of buildings.
...
  1. Tourism development should only be developed where its scale and form would not overwhelm, over commercialise or detract from the intrinsic natural values of the land or its locality.
...
  1. Development within urban and tourist accommodation zones should be designed and sited in sympathy with the existing natural and built character of its locality. It should not be out of scale, of conflicting colour or materials or detract from any natural backdrop to the zone, nor project above the skyline visible from the coast.
  2. The proposal would not be visible from Main Road, the primary arterial road and major functional entrance into Robe township. From mostly a side-on view, it would be partially visible from the residential property boundaries to the west in the Residential Zone, some 30-40 metres distant, though not from within the dwellings and as the building is to be set into the slope so that the end wall and closest southern corner would be lowered, they would be partly screened by fill and back-fill and not be obvious to the eye. From within the site and particularly from the verandah of the main accommodation/kitchen/dining building, and on the evidence of Mr Alexander, the appellant and the designer, views would be obtained and maintained over the proposed low angled roof form, toward the coastal areas to the north and north-east, and again, much of the building wall (south-eastern elevation), would not be evident because of the excavation and setting into the slope of the building walling and back-fill against the wall. Mr Hutchison correctly noted (Exhibit R3, pp 3 and 4):
The building has been sited to make use of a shallow gully on the land which will be further excavated to enable the building to be constructed with a floor level of 4 metres AHD such that from the eastern, southern and western elevations, the majority of the building will be below the natural ground line.
  1. The building is sited to be setback some 3 metres from the northern angled boundary to the verandah and 4.2 metres to the wall of the building (refer Plan A01, Exhibit A1). There is likely to be a 1 metre wide paving strip around it. Hence, a 3 metre wide area would remain for intended landscaping in conjunction with a vegetated strip of between 4-5 metres between the pedestrian path and the boundary (notionally, the verge of the pathway and subject to consent of the Drainage Board). No landscape detail was provided.
  2. In terms of views from the pathway, and as noted above under The Locality, the adjacent pathway in the drainage reserve is one of a few pedestrian connections for people moving on foot to/from the eastern side of the drain/creek (the beach, residential and caravan park areas) and to/from the central areas, services and facilities of Robe to the west, with other routes available via the main part of Barrowmans Drive and/or along the coastline. On the evidence and on my observations, I expect it to be irregularly and relatively infrequently used. It would appear to have no formal status, as I understand things, though it is marked on some visitor maps and is partially signed posted. Accordingly, I afford it some, but not high weight in terms of visual amenity protection – less than afforded Main Road users or adjoining residential owners.
  3. As for the existing main old galvanised iron building on the camp site, the proposed building would be seen through partial screening from along the pathway, certainly adjacent for its length on the northern elevation, but diminishing rapidly to the north-west and to the north-east where the path turns away from the boundary and is angled toward the footbridge creek/drain crossing point. Its appearance, or that of a standard building in the location, is likely to represent a rapid visual change from the relatively dense bush adjacent the path to the north-east. Further intended screen planting will soften its appearance and size to a degree but not screen it entirely. A wider 5-8 metre wide very densely planted revegetation strip with a selection of bushy species would be needed to achieve more complete screening (refer Principle 178).
  4. I now consider the question of whether the proposed building siting/setbacks are too close to the northern boundary and would cause such a negative impact on visual amenity to warrant rejection of the development on that basis alone and against the relevant Development Plan guides listed.
  5. Having regard to the evidence, the view of the site and locality and the Zone provisions contexts, and on a fact and degree basis, I assess that there will be some variance against the quoted guidelines, particularly visibility of the north-eastern elevation of the building and that it will have some impact on visual amenity enjoyed by users of public land to the north generally. However, I also assess that in isolation of other issues the variance may not warrant rejection of the proposal, and that subject to the outcome of minor design refinement and further detail on landscaping, the proposal could become acceptable. As alluded to by Mr Alexander, there remains some flexibility about the setback, floor levels and extent of cut and fill, such that a further setback of the building by 1 to 2 metres and a marginally increased floor level as may be required (refer later) tapering and filling under the deck/paved verandah; minimal pedestrian paving and maximised planting areas with possible retention of the most northerly Cyprus Pine. In addition, planting or lattice screening of the north-western tanks on their northern end and detailing all north facing finishes, colours and treatments, including glazing (desirably matt, tinted but not reflective), could potentially further minimise visual impact and to the extent warranting approval of the proposal. A detailed design of these features and elements for the northern (north-east) elevation is necessary.
  6. I assess and acknowledge that visual amenity of a small part of the locality would be impaired but that most of the locality would remain relatively unaffected. Principle 216 is therefore partially achieved.

Aural Amenity Impact


  1. Noise impacts were not a significant issue for the Council (or representors though it was raised by Mr Hutchison), but one worthy of some consideration and potential for improvement having regard to key Development Plan guidelines as follows:
COUNCIL WIDE
...
Objective 36: Prevent environmental nuisance or harm resulting from noise, smoke, dust, fumes, odour, light spill and vibration.
...
PRINCIPLES OF DEVEOPMENT CONTROL
  1. Buildings and structures should be sited to minimise any adverse effects on neighbouring development and traffic safety.
...
  1. Development which is liable to be prejudicial to the effective development and ongoing use of other land in the locality should not be undertaken.
  2. Development near zone boundaries should have regard to existing land uses and the policies for land in those neighbouring zones.
...
  1. Development liable to create a nuisance to land owners within the locality due to the creation of noise, vibration, smell, fumes, smoke, lighting spill or other offensive emissions should not be undertaken.
...
  1. Development should not cause unreasonable overshadowing of adjoining allotments, or glare, reflections or any other undesirable micro climatic effect.
  2. It would appear that the current use is unconstrained in town planning-development approval terms regarding activities, hours of use, or noise volumes, but it is noted that it may be limited by State wide noise controls under the Environment Protection Act 1993 and related ancillary documents. It may, from time to time, and it could in the future, cause some noise nuisance to the two adjoining residential neighbours to the west.
  3. The long-standing existing use is not acoustically constrained to a specific degree and nor is the newly approved Church facility building (except for the limiting of amplified sound systems outside of the building – Condition 5 -Exhibit A5).
  4. The proposal, as an important new building element to be added to the existing ones, if approved and implemented, would represent an opportunity to ensure noise nuisance does not arise from activities in this building or immediately adjacent.
  5. No evidence was received by the Court from an acoustic engineer though Mr Hutchison delved into this topic. His evidence cannot be accepted as that of an acoustic expert. Mr Alexander also expressed some views on building attenuation.
  6. The Court needs to be satisfied in terms of the Development Plan criteria, with the likely acoustic performance of the building and relative to the State noise guidelines and standards. An acoustic engineer’s report and any recommendations for building modifications or additional features (including to the ceiling, openings, ventilation or roofing), is required by the Court prior to the issue of any final consent. The onus is on the applicant to obtain it. From my experience, and having regard also to the evidence of Mr Alexander, I would be very surprised if noise levels or impacts became an insurmountable problem or issue for the appellant (and the Court).

Revegetation-Landscape Enhancement


  1. The appellant proposes and envisages, as part of the development before the Court, to undertake further revegetation of the so-called bush areas with locally indigenous species. No detail or management regime is provided in that regard. As an important positive factor in terms of landscape and natural character enhancement (and sought by Council wide Principle 151), such detail is required to be provided to the Court, for the inclusion in any potential consent that might be forthcoming. It may be an important offset to the likely loss of a few small native trees and shrubs near the north-eastern corner of the building siting, if it remains in the location as envisaged. I do not assess such removal to constitute vegetation clearance as the term is used, and I agree with Mr Wright’s interpretation about that. The appellant needs to be mindful in species selection, numbers and in separation from existing, approved and proposed buildings, about bushfire hazard and risk to ensure no additional problems or issues arise (refer later).

Stormwater Management


  1. The appellant appears to have good intentions regarding the appropriate and proper management (and re-use) of stormwater, having regard to Council wide Principle 139 and others, however, this aspect too, needs further detail including:

- driveway/car parking areas/drainage – potentially via swales and collection/discharge aspects;

- accessibility/connectivity for CFS vehicles in an emergency to the southern tanks at the eastern end of the building and the proper use/disposal of overflow water;


to enable the Court and others to be confident of its detail and implementation as part of this proposal.
Access-Car Parking


  1. Whilst potentially problematic, access to the site via the leased land (Exhibit R6) has been accepted by Mr Hutchison (written evidence) and recently by the Council indirectly, through its approval of the Church facility application. Approval to the proposal before the Court is unlikely to change, be limited by, or significantly exacerbate that position. I accept the evidence of Mr Wright that there are potentially appropriate alternative engineering solutions available to the site and to the owners, should the access over the leased land ever be terminated in the future.
  2. In terms of car parking provisions, given the limitation on use of the recreation hall to users of the youth camp facility (68 persons sleeping capacity), the manner in which many are likely to arrive at the site (bus, coach or shared car), and on the evidence of both town planners, and having regard to Council wide Principles 77-79, I accept that there is likely to be adequate car parking space available as proposed in general for user car parking. However, I require further information and detailing along two lines:

Bush Fire Risk/Hazard/Safety


  1. Relevant guidelines are:

COUNCIL WIDE
Objectives: 29, 30; and
Principles of development control: 179-182 (and Figure Ro(BPA)/9).


  1. The current camping facility and the approved Church development are already susceptible to a level of risk due to the general location of and proximity to the bushland in the drainage reserve to the east and to the north. The proposed facility which is for the casual, active use by existing residents/campers will not change or increase that risk in my view. I assume that the building will be designed to meet the Building Code of Australia and relevant policies and standards (as alluded to by Mr Alexander) and I note his involvement of CFS personnel in the design process. Nevertheless it is appropriate to demonstrate to the Court that appropriate access for CFS vehicles is maintained and provided around the site and to the proposed building, particularly to the water tanks and with appropriate connectivity of hardware to enable its effective use in times of emergency.
  2. In addition, as referred to above, further landscaping detail and species selection needs to be detailed and to be cognisant of the effect on bushfire hazard and risk.
  3. I also note that this was not an issue raised in the Council’s refusal but it is assessed to be one worthy of further consideration before any consent is granted.

Flooding/Sea Level Rise/Floor Levels


  1. The key and relevant guidelines are as follows:

Objectives: 52, 66-68; and
Principles of development control: 203, 205, 206, 222, 223 and 225-228.


  1. This issue received some consideration and evidence from Messrs Hutchison and Alexander. It was of an anecdotal nature regarding high water mark/flood level in a peak event(s), bringing water moderately near to the northern boundary of the subject land adjacent to the north-eastern corner of the proposed building. In his design, Mr Alexander appears to have designed/sited and set levels for the building that are sufficiently above the known event levels. The building is also for casual recreational use and not a more sensitive residential use and occupancy, nor in a coastal zone.
  2. Nevertheless it would be useful to the Court, for such levels (high water mark, contours or spot and floor levels) to be confirmed and documented by the appellant and, if possible, with input and advice from Coast Protection Board staff and/or an appropriately qualified consulting engineer – as to the adequacy relative to tides, flooding and potential sea level rise events.

Conclusions


  1. The Court received substantial written closing submissions from both the appellant and counsel for the respondent. That material is taken into account in this assessment, the approach taken and the final decision. On the evidence, from my assessment, including a careful consideration of the site and locality and the relevant Development Plan guidelines, particularly the RLFZ purpose and intent, I was satisfied that the crucial land use test is acceptably met by the proposal. I was also satisfied that potentially, and with a range of further detail, information and perhaps some amendment, the proposal is able to sufficiently meet the range of other relevant tests and particularly relating to other important issues such as:
  2. Consent would be conditional on those issues being further addressed to the satisfaction of the Court.
  3. I issued a Memorandum on 28 October 2008 and allowed time for the appellant, should he wish, to respond and provide such further information, detail and amendments as canvassed above and a complete set of full size scaled plans to the Court and to the Council; and for the Council and the appellant to confer and to make submissions to the Court regarding planning conditions of any Development Plan Consent that may later be granted by the Court. I suggested that the Church may also confer with the Drainage Board to ascertain whether it agrees to, or acquiesces to, the proposal and to further planting on its land in Area A, to respond to the “hypothetical” submission of counsel for the respondent Council.
  4. I heard the parties further on 10 November and 23 December 2008, and 15 January 2009.

Supplementary Assessment and Consideration


  1. As a result of the Memorandum, and the further endeavours of the appellant, further material in Exhibits A6-A14 was received by the Court giving rise, very reasonably, for the Council to reconsider its position and the calling of further evidence. At the resuming hearing, furthered evidence was received from the appellant in-person and the Council recalled its town planner, Mr Hutchison, who prepared a supplementary statement tendered as Exhibit R7. Further oral submissions were made by the appellant and counsel for the respondent.
  2. I now revisit the seven outstanding issues referred to in para 71 above, in the light of the further material, evidence and submissions.

Visual Impact


  1. Advice from a representative of the CFS (Exhibit A10), if implemented, would mean that most (if not all) vegetation between the building siting and up to the northern boundary would be removed. Hence, contrary to what was relied upon in para 48 above, there would not be a 4-5 metre revegetated verge strip, nor a 3 metre wide additional newly planted strip to provide building appearance softening or partial or full screening (refer paras 50 and 52), to the north and north-east and as viewed from the Drainage Reserve and the public walkway. This would be exacerbated with the removal of the three Cyprus pine trees as intended by the appellant, although the most westerly one could be retained if essential and by condition of consent. Hence, the degree of negative impact on visual amenity is likely to be greatly increased, more so than previously assessed.
  2. Given the intended cut and filling and the retained siting of the building, with a greater boundary setback being unachievable (on the evidence of the appellant, due to proximity to and encroachment on the old main building to the south), and on the evidence of Mr Alexander, there would be a naturally battered slope down from the raised-paved verandah to the northern boundary, across the 3 metre setback distance. It would seem that this would need to be stabilised and desirably planted with at least ground cover or grasses.
  3. As alluded to by Mr Hutchison (Exhibit R7), there is a “real possibility that the building will actually be higher on the land than shown, and therefore project higher above the natural ground line ...”. Refer later for discussion on levels. However, that appears the likely upshot if the advice of the representative from the Coastal Management Branch is implemented. The inability to provide landscaped screening to the north becomes a significant and major deficiency of the proposal, contrary to the conservation spirit and thrust of the Plan. I assess the deficiency and visual impact of the proposal to the north to be fatal to the application.

Acoustic Impact


  1. Notwithstanding the desire of the Court (para 59 above) to receive expert acoustic engineering input and evidence, that was not forthcoming from the appellant. However, I note Mr Hutchison’s reflections on the issue (Exhibit R7 at p 5), and I tend to agree with him. On that basis this issue is not a significant one nor fatal to the proposal.

Vegetation Enhancement


(Refer also above under visual impact)

  1. I note the co-operation of the Drainage Board and the intentions of the appellant to allow and provide supplementary indigenous planting in the drainage reserve to the north and east and of the subject land. However, this is largely unachievable if the advice of the CFS representative is implemented, as it should and in the absence of expert evidence to the contrary, and given the high fire risk nature of the specific site and locality.
  2. Hence, the option to provide enhancing screening vegetation is curtailed and unable to be realised (as sought by the Plan) to make it a positive outcome for the development proposal.

Stormwater Management


  1. Only minimal additional stormwater management detail was provided by the appellant and not by a civil engineer. In principle, the concepts are acceptable and I agree with Mr Hutchison (Exhibit R7, p 6), that they could “form part of the more detailed design to be provided at Development Approval Stage”, and be the subject of any consent, if it were to be forthcoming.

Access/Car Parking


  1. The position regarding access is adequate with nothing further to add from the above. On the updated plans, the parking required - approved as part of the Church/conference facility has been added to site plans (some 16 spaces). It would appear that no additional formal parking spaces are proposed as part of this development and nor, on assessment of the evidence of Mr Hutchison, is it required. Adequate parking opportunities for cars and buses appear to be available on the site for the existing approved and proposed development.

Bushfire Hazard and Risk


  1. The advice of the CFS officer (Exhibit A10, though not called to give oral evidence) assessed the bushfire risk rating for the proposed building in terms of Australian Standard 3959, as high. That was despite the description in the Development Plan of “general” (and therefore not requiring the formal consultation and input of the CFS). He recommended that – “vegetation should be removed from the building up to the property boundary to the north and selective vegetation removed to the east for a distance of 15 metres. The result to the east of the proposed building should equate to a maximum of 20 per cent coverage and no trees or shrubs closer to the building equal to the plants’ mature height”.
  2. Other aspects dealing with access and water supply are satisfactory or can be conditioned so.
  3. As an issue, the proposal could comply with those recommendations and the Development Plan guides. However, it would be at the expense of vegetation removal and visual amenity preservation or indeed enhancement and contrary to certain other guidelines in the Plan.

Flooding, Sea Level Rise, Building Levels – Setbacks


  1. The Court sought documentation and confirmation of accurate levels; and potentially, input and advice from the Coast Protection Board staff and/or a qualified consulting engineer.
  2. Whilst certain “existing site contours” and a few spot AHD levels are shown on Drawing AO3 (Exhibit A7), their accuracy is by no means certain – the work of Mr Alexander and others of the Tarooki Youth Camp committee, but not provided for or vouched for by a surveyor licensed or otherwise. Mr Hutchison raised doubts about certain aspects offered.
  3. The lack of accurate levels, means that the Court (and others) cannot be certain of building levels or the implications of possible sea level rise, storm surge and stormwater runoff events. Advice from an officer of the Coastal Management Branch, for the Coast Protection Board was obtained (Exhibit A14 – though not called to give oral evidence), based on the levels provided by the appellant and it confirmed that the adjacent estuary land to the north is low lying and subject to storm surge flooding from the sea.
  4. Levels recommended (supported by the Development Plan Policies), to cope with sea level rise to the year 2050, in the location, appear to be met by the proposal (subject to the question of certainty of the site levels). However, it does not quite meet (300mm) less the levels recommended for sea level rise to 2100, namely 2.7 metres AHD; and importantly, these recommendations do not take account of localised stormwater flooding with a high rainfall event and a further recommendation that the advice of a qualified engineer should be sought to consider the possibility of both sea level rise and stormwater flooding occurring together. That suggestion and evidence was not taken up or produced by the appellant. Hence, I cannot be certain that the selected floor levels are adequate and not exposed to flooding risk. I note the submissions of the appellant that with a non-sensitive use (a recreation hall rather than say residential use), any propensity to, or actual flooding, would not be of much significance or cause much if any property loss and damage.

Further Conclusions

  1. The seven outstanding issues, and further material, evidence and submissions thereon, have been further considered and assessed.
  2. Whilst I afforded the appellant every opportunity to thoroughly and properly address those issues, taking into account his non-legal/non-expert status, and with a reasonable attitude taken by the Council to this approach, I am not satisfied that that has been achieved to the requisite level, to enable the Court to be satisfied that the Development Plan guidelines regarding those issues would be sufficiently achieved.
  3. I assess and conclude that the proposed development as amended (Exhibit A7) is not acceptable for the following reasons:
  4. Hence, I conclude that the proposal as amended, represents a sufficient departure from the Development Plan guidelines and the Plan as a whole, to warrant refusal of the application. I generally concur with the conclusions of Mr Hutchison in Exhibit R7.

Decision


  1. The appeal is dismissed – the decision of the Council upheld.
  2. There will be an order to that effect.

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