JEFFRIES v CITY OF CHARLES STURT [2009] SAERDC 7 (17 February 2009)

Last Updated: 19 February 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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JEFFRIES v CITY OF CHARLES STURT

[2009] SAERDC 7

Judgment of Commissioner Hodgson

17 February 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Application for erection of carport forward of existing dwelling - Residential Zone (West Lakes General Policy Area 4) - refused by Council - character of locality - relevance of similar developments in nearby streets - locality restricted to street within which subject land located - proposal would be anomalous in the established streetscape and in conflict with a number of relevant Development Plan provisions - appeal dismissed and decision of Council to refuse consent confirmed.

Development Act 1993; Environment, Resources and Development Court Act 1993, referred to.

Westside Investments v City of Port Adelaide Enfield [2005] SAERDC 14; Armstrong & Armstrong v City of Norwood, Payneham & St Peters and Maylands Hotel [2002] SAERDC 53, considered.

JEFFRIES v CITY OF CHARLES STURT
[2009] SAERDC 7

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. By Development Application dated 2 April 2008 (“the Application”) the Gotta Getta Group, on behalf of Mr Len Jeffries (“the Appellant”), sought Provisional Development Plan Consent from the City of Charles Sturt for the erection of a carport at 6 Dutton Grove, West Lakes Shore. The land is more particularly described as Allotment 73 in Deposited Plan 10262, Volume 5267 Folio 263. By Decision Notification Form dated 2 July 2008, Council advised the Appellant that the Application had been refused, the reasons for refusal being as follows:

Reasons for Refusal

1. The proposal is contrary to Principle of Development 2 of the Residential Zone (West Lakes General Policy Area 4) in that the proposed development is not designed to be in harmony with the existing local character.
2. The proposal is contrary to Council Wide Principle of Development Control 124 (g) in that the proposed carport will not have consistent setbacks from street frontages.
3. The proposal is contrary to Council Wide Principle of Development Control 131 (a) in that the proposed carport will visually dominate the street elevation of the dwelling.
4. The proposal is contrary to Council Wide Principle of Development Control 136 (a) in that the proposed carport does not contribute or enhance the existing streetscape character.
5. The proposal is contrary to Council Wide Principle of Development Control 137 (a) and (b) in that the proposed carport will diminish the attractiveness of the streetscape and dominate views of the dwelling form [sic] the street.
6. The proposal is contrary to Council Wide Principle of Development Control 136 (b) in that the proposed carport does not compliment [sic] the associated dwelling.
2. On 22 July 2008 the Appellant lodged an appeal against the decision of the Council. Subsequently, the Court directed, by consent, that the Appellant’s name on the file be changed to “Len Jeffries”, the registered proprietor of the subject land.
3. A Conference convened pursuant to s 16 of the Environment, Resources and Development Court Act 1993 did not produce a settlement and the matter accordingly proceeded to a hearing. By agreement between the parties, the hearing was conducted on the basis of written submissions only. Written submissions by both parties were provided to the Court, which subsequently undertook a view of the subject land in the company of the parties. An opportunity was provided to the parties to submit supplementary submissions. Written submissions in this matter were provided by Mr Jeffries and Ms McAulay, counsel for the Council. Ms McAulay’s submission was supported by an expert witness statement by Ms Susan Hemingway, a qualified and experienced planner in the employ of the Respondent Council.

The Subject Land

4. The subject land is located at 6 Dutton Grove, West Lakes Shore as depicted on Map ChSt/3 in the Development Plan for Charles Sturt (City) dated 28 February 2008. 6 Dutton Grove is an irregularly-shaped allotment facing Dutton Grove. It is relatively flat, and has an approximate depth of 35.07 metres and an approximate width of 30.4 metres to Dutton Grove. An existing single-storey detached dwelling is sited approximately 6.3 metres from the front property boundary, with a double garage under the main roof on the western side and an attached single carport on the eastern side. A driveway extends from the front property boundary to the double garage with a double crossover to the street.

The Locality

5. Ms Hemingway, for the purpose of her evidence, defined a locality which extended along the full length of Dutton Grove to Heysen Crescent. This locality included Nos 1-15 Dutton Grove. All of these properties are located within the Residential Zone (West Lakes General Policy Area 4).
6. Dwellings within the locality are predominantly single-storey detached dwellings on medium to large allotments with open front gardens and medium street setbacks. An exception to this is the vacant allotment to the east of the subject land (7 Dutton Grove) and two, two-storey detached dwellings located at 11 and 14 Dutton Grove. Most dwellings have their carports or garages set in line with the main face of the dwelling or behind the main face and integrated under the main roof of the dwelling. Exceptions are Nos 2, 8 and 13 Dutton Grove, which have their car parking structures forward of the main wall of the associated dwelling but with materials and finishes to match the dwelling. In these instances front setbacks range from 3.6 metres to 6 metres to the car parking structures. Both corner allotments on Dutton Grove, which have their frontages to Heysen Crescent, have carports and garages with small secondary setbacks.

The Proposal

7. The proposal entails the construction of a double carport with a pitched roof. The carport would be 6.2 metres wide, have a depth of 4.7 metres, and a maximum height of 3.3 metres to the topmost part of the roof. The carport would extend to between 700 mm and 1 metre from the front boundary of the subject land at its closest point. The carport would be a free-standing structure with a roof pitch matching the existing dwelling. The roofing material proposed for the carport is Colorbond, of a colour to match the colour of the roof tiles of the dwelling.

The Development Plan

8. As I have noted earlier, the subject land is located within the Residential Zone (West Lakes General Policy Area 4). The Desired Future Character for Policy Area 4 is as follows:

DESIRED FUTURE CHARACTER
This policy area should be characterised by the maintenance of the unique existing character, amenity and design integrity that characterises West Lakes and West Lakes Shore. New development should incorporate setback, siting, materials, roof forms and features consistent with and enhancing the established character, including recessed courtyard walls, verandahs, roof overhangs and use of appropriate landscaping. The area should accommodate detached and semi-detached dwellings, at low densities, with dwellings at a higher density facing the lake. Development west of Military Road should enhance the seaside character through appropriate design, roof forms, materials and colours.

9. The only Policy Area Principle of Development Control of relevance is Principle 2:

Building Appearance and Character

2. Development should be compatible with the ‘modern’ character of the area, typified by detached dwellings built in the 1970’s and 1980’s. Variability in housing styles, including contemporary modern designs, are [sic] appropriate. The design, location, external colours and materials of all buildings, structures, garaging, fences and landscaping should be in harmony with the existing local character,. [sic]
10. Council Wide Provisions of particular relevance are as follows:

Objective 97: The amenity of localities not impaired by the appearance of land, buildings and objects.
PRINCIPLES OF DEVELOPMENT CONTROL
General
...

2. Development should be designed to enhance the amenity of the locality within which the development is to take place in accordance with relevant Council Wide, Zone and Policy Area Objectives and Principles of Development Control.

...

124. Building appearance should be compatible with the desired future character of the locality, in accordance with any relevant Zone or Policy Area, in terms of built form elements such as:

(a) building height, mass and proportion;
...
(g) setbacks from street frontages; ...
...

125. Buildings should be designed to achieve a visually cohesive streetscape, in accordance with any relevant Zone or Policy Area, through the use of compatible materials and finishes, consistent roof pitch, building massing and set-backs in order to maintain visual continuity between adjacent buildings.

...

128. The visual bulk of buildings adjacent to street frontages or the private open space of adjoining allotments should be reduced through design techniques such as setbacks, colour, building materials, detailing and articulation.

...
131 Garages and carports should:
(a) not visually dominate the street elevation of the associated dwelling in terms of their width and scale; and
(b) have a roof form and pitch, building materials and detailing that compliment those of the associated dwelling.
Design Techniques (these are ONE WAY of meeting the above Principle)

131. In relation to (a) above, where a double width garage or carport faces a street, other than a service lane, and is set back less than 8 metres from the street to provide visual interest:

(a) two or more individual doors are provided, with a distance of not less than 0.3 metres between them; or
(b) tilt up doors are provided with moulded door panels.
...
136 Buildings and structures should be set back to:
(a) contribute to and enhance attractive existing or desired streetscape character, in accordance with the relevant Zone or Policy Area;
...

137. Garages and carports that face the same primary frontage as the associated dwelling should be setback in order to:

(a) enhance and not diminish the attractiveness of the streetscape;
(b) not dominate views of the dwelling from the street; and
(c) provide for adequate on-site carparking.
Design Techniques (these are ONE WAY of meeting the above Principle)

137. Except where otherwise specified in a particular Zone or Policy Area setbacks of garages and carports are:

(a) not less than 0.5 metres behind the main face of the associated dwelling; or
(b) in line with the main face of the associated dwelling (if the dwelling incorporates minor elements such as projecting windows, verandahs, porticos, etc which provide articulation in the building as it presents to the street); or
(c) at least 5.5 metres from the primary frontage, whichever provides the greatest setback.
...

311. The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated.

Assessment

11. The evidence of Mr Jeffries, briefly summarised, was that:

(a) the proposed carport was required to provide protection from falling branches and bird droppings to cars parked in front of the garage and to provide protection from weather when going from the garage to the front door;

(b) the Council had already approved and allowed construction of a number of carports forward of dwellings and with minimal setbacks from the street at 1 Dutton Grove and in several adjoining streets including Nolan Place and Heysen Crescent;

(c) the carport would be no more visually dominant than the others already approved in the area to which reference was made in (b);

(d) a large hedge between Nos 4 and 5 Dutton Grove would obscure the proposed carport from the streetscape;

(e) the proposed carport was designed to follow the pitch of the roof of the existing dwelling and was an open structure which would not impact on the existing streetscape character;

(f) the design of the carport was such that it would not dominate the view of the dwelling from the street;

(g) the design of the carport would complement the associated dwelling, having the same roof pitch as that dwelling and using colours which matched it;

(h) the Council had already approved a development at No. 7 Dutton Grove which would allow the construction of two, two-storey dwellings. This would change the established character of the streetscape and the frontage and would result in one dwelling being in line with the front of the proposed carport; and

(i) a number of dwellings in Dutton Grove already had structures forward of the main building line.

12. The evidence of Ms Hemingway, briefly summarised, was that:

(a) there were three examples along Dutton Grove of garage or carport structures set forward of the main wall of the dwelling (1, 2 and 8 Dutton Grove). At 2 and 8 Dutton Grove, garages were integrated under the main roof form and were of the same materials as the associated dwelling and further, had substantially greater front setbacks than the subject proposal. No. 1 Dutton Grove was a corner allotment with its primary frontage to Heysen Crescent;

(b) examples of carports forward of the associated dwelling within Heysen Crescent and Nolan Place had greater setbacks than the proposal and were not located within the relevant locality for the purposes of assessment of the subject proposal. The character of Nolan Place was different to that of Dutton Grove;

(c) the pitch and style of the roof of the carport, together with the minimal setback, would result in the carport being a dominant structure in the Dutton Grove streetscape;

(d) the design technique following Council Wide Principle 137 suggested that the carport should be set back at least 5.5 metres from the primary frontage;

(e) the proposal failed to satisfy both the quantitative and qualitative provisions and design techniques of the Development Plan;

(f) the proposal did not maintain the consistent setback of dwellings and structures in the immediate locality and consequently its bulk and scale would be inconsistent with the character of the locality, contrary to the Desired Future Character Statement for Policy Area 4 which sought the maintenance of the unique existing character and amenity, with new development incorporating setbacks and siting consistent with and enhancing the established character;

(g) the land already had adequate onsite car parking for five cars and thus the proposal was not required in order for the car parking requirements of Council Wide Principle of Development Control 155 (two car parking spaces) to be met;

(h) 1 Dutton Grove was a corner allotment in respect of which dispensations were generally allowed for side setbacks;

(i) the proposal would be the only example on Dutton Grove of a carport extending well forward of a dwelling’s primary frontage and hence would be a significant departure from the existing character of the streetscape and place the proposal in conflict with relevant Development Plan provisions;

(j) while the large hedge between 4 and 5 Dutton Grove would assist in reducing the visual impact of the proposal, the hedge was on land owned by a third party and could be removed from that land at any time; and

(k) while it was acknowledged that the garage associated with the proposed two-storey dwelling at 7 Dutton Grove would be forward of the main wall of that dwelling, this was due to the irregular allotment frontage at the end of the cul-de-sac and the garage was well integrated under the main roof and constructed of materials and finishes to match the dwelling. While that dwelling, if constructed, would be dominant in the streetscape due to the allotment configuration, it would not of itself dramatically alter the streetscape character.

13. Ms McAulay, for the Council, submitted that the examples of carports or garages in front of the building line cited by the Appellant were of limited, if any relevance to assessment of the subject proposal because:

(a) the structures concerned were either approved under a less stringent policy regime than that which now applies in Policy Area 4, the current policies being introduced in 2003 (1 Nolan Place, 10 Nolan Place, 15 Dutton Grove and 1 Dawe Court) or had capitalised on the existence of the above examples on the basis that such development had become part of the character of their locality;

(b) they fell outside the locality defined by the only expert witness, Ms Hemingway;

(c) definition of that locality by reference to visual, appearance and character considerations, was consistent with the approach taken by the Court in matters such as Westside Investments v City of Port Adelaide Enfield [2005] SAERDC 14 and Armstrong & Armstrong v City of Norwood, Payneham & St Peters and Maylands Hotel [2002] SAERDC 53; and

(d) the character of Nolan Place differed from that of Dutton Grove.

14. Furthermore, Ms McAulay submitted, the expert opinion of Ms Hemingway had not been challenged by an appropriately-qualified witness, nor had anything been put to the Court by the Appellant which would suggest that evidence should not be accepted. The proposal failed to satisfy the relevant qualitative and quantitative provisions of the Development Plan which sought to preserve important elements of the character of the locality surrounding the subject land.
15. I have some sympathy for the Appellant in this matter. He was understandably nonplussed by the Council’s refusal to approve his proposal notwithstanding the existence of similar developments in nearby streets and, indeed, at the junction of Dutton Grove and Heysen Crescent. However, that refusal was based on an assessment of the subject proposal against the relevant provisions of the current Development Plan, which provisions clearly speak against carports or garages which are dominant in the streetscape, and which are inconsistent with the prevailing building massing and setbacks in that streetscape. For the purpose of determining the relevant streetscape for the purpose of that assessment, it is well-established that the relevant locality is that within which the subject proposal can be viewed. Reference to streets which cannot be viewed contemporaneously with a view of the subject land are not relevant to the assessment.
16. For that reason, and also because approval of many of the developments cited by the Appellant predated the more stringent controls contained in the current Development Plan, I can ascribe little weight to comparable or similar developments outside Dutton Grove. Within the latter, with the exception of dwellings on the corner of Dutton Grove and Heysen Crescent, which face the latter and therefore have the benefit of side setback concessions, there are no developments comparable to that proposed. There are, at 2, 8 and 13 Dutton Grove, garages which extend somewhat forward of the main wall of the dwelling, but in each instance the garages are fully integrated into the design of the dwelling, in both form and materials, and still exhibit setbacks of between 3.6 metres and 6.2 metres from the front property boundary. The subject proposal, in contrast, would be between 700 mm and 1 metre from the front property boundary and would have a form which was not integrated with the dwelling on the subject land and use roofing materials different to those used in that dwelling.
17. Having regard to all the evidence, to what I saw on the view, and to the relevant provisions of the Development Plan, I have concluded that the subject proposal is in significant conflict with a number of those provisions, particularly Council Wide Principles 124, 125, 128, 131, 137 and 311. It would, in my assessment, be anomalous in an established streetscape and render more difficult the maintenance of the established character of Dutton Grove as sought by the Desired Character and Principle 2 for the Residential Zone (West Lakes General Policy Area 4). That being the case, I have further concluded that the decision of the Council to refuse the subject proposal was correct and should be confirmed. There will be an Order to that effect.