BESTT v CITY OF MITCHAM [2009] SAERDC 9 (20 February 2009)

Last Updated: 26 February 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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BESTT v CITY OF MITCHAM

[2009] SAERDC 9

Judgment of Commissioner Green

20 February 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - domestic outbuilding - refused by the Council - Residential (Central Plains) Zone and Policy Area 8 - size, siting, appearance of outbuilding and impact on visual amenity of locality the central issues - weight to be applied and comparison to complying development conditions considered - work required of all relevant guidelines - visual intrusion, visual amenity impact confirmed - degree of impact sufficient to warrant rejection of the application - appeal dismissed - decision of the Council upheld.

Development Act 1993; Development Regulations 2008, referred to.

Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356; Nadebaum v City of Mitcham 1995 EDLR 587, considered.

BESTT v CITY OF MITCHAM
[2009] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter is an applicant appeal against the decision of the City of Mitcham (the Council) to refuse to grant Development Plan Consent to Development Application No. 080/969/2007, made under the Development Act 1993, for the erection of a domestic outbuilding (garage) at St Marys.
2. The Council’s Development Assessment Panel refused the application citing the following reasons:

It is at variance with Principles of Development Control 19(c), 23(b) & 23(c).

3. I also noted the report of Council planning staff (Exhibit R1, pp12-15), recommending approval of the application. The author, Mr Fewster, was not called or subpoenaed to give evidence to the Court. His report and conclusions appeared to rely on an erroneous Development Plan reference, from a later version of the Plan.
4. A summary of some of the relevant details in this matter is as follows:

Registration date of application:	5 July 2007
Subject land address:	138 Cashel Street, St Marys
Existing use:	Detached dwelling with side garage/carport
Development proposal:	Erect a domestic outbuilding (garage) to be used in association with the dwelling for home activity purposes
Relevant authority:	City of Mitcham
Relevant/appropriate Development Plan:	Mitcham (City) consolidated version 22 September 2005
Relevant Zone/Area:	Mitcham (Central Plains) Zone – MAP Mit/13; Policy Area 8 – MAP Mit/33
Date of decision:	4 June 2008
Appeal lodged:	3 July 2008
Conference concluded:	10 November 2008

5. The Court viewed the subject land and the locality on the morning of Monday, 9 February 2009 in the presence of the parties.
6. Witnesses providing evidence to assist the Court, and to which regard is given, comprised for the appellant, the appellant in person, an electrical engineer and certified engineer but with no relevant qualifications or experience to the substance of this appeal; and for the respondent Council, Mr P Brunning, an experienced consultant town planner (refer Exhibit R2).
7. The evidence of Mr Brunning stands largely unrefuted, excepting:
   • an erroneous omission in having no (initial) awareness or regard to Residential (Central Plains) Zone, Principle 3 and complying development conditions for a domestic outbuilding set out in Table Mit/1. His oral evidence responded to questions regarding that omission adequately; and
     
   • reliance on the contents of a newer version of the Development Plan with respect to Council Wide Principle 23 referring to a potential floor area of 56 square metres, rather than, in the relevant Development Plan, the reference to 40 square metres floor area. He may have fallen into that error, as it was one also made in the report of Mr Fewster to the Council’s Development Assessment Panel.
     

The Subject Land

8. The subject land comprises allotment 15 in FP No.149000 and contained in Certificate of Title Volume 5812 Folio 62. It is rectangular in shape generally and to the street frontage but with an angled rear boundary. Its frontage to Cashel Street is some 20.42 metres with depths of 47.63 and 55.71 metres, and a rear boundary dimension of some 21.95 metres providing for a site area in the order of 1055 square metres.
9. The land slopes from the south-east to the north-west with a fall of several metres from corner to corner. So-called “contours” were shown on the site plan (Exhibit A1, Sheet 001C). However the appellant in evidence confirmed that such contours and RL Level for the dwelling were not prepared or vouched for accuracy by a surveyor but were estimated by the draftsperson and the appellant himself. Nevertheless Mr Brunning agreed that they appeared to be a reasonable approximation as to the fall of the land and the levels, but that they could not be relied upon with certainty. That position is now somewhat unfortunate for the appellant. In my view such information and accurately presented, should have been requested at the commencement of or during the development application processing stage by Council staff given the nature of the sloping site and the proposal, with judgment and consideration required of levels, retaining walls, cut and fill, and extent of visibility of the structure.
10. I agree with Mr Brunning. The information is adequate to form his opinion and for this decision, but if approval were to be forthcoming, an accurate site-contours-levels plan and retaining wall and structural floor levels would be required prior to the issue of consent.
11. I have completed my assessment and decision making with that limitation in mind.
12. Refer to photos 1 and 2 in Exhibit R2 of the rear of the subject land, giving an indication of the slope.
13. There is a relatively small dwelling erected on the subject land with an elevated rear extension and it is of moderate age and externally of average to poor condition and currently undergoing renovation. It has a garage/carport adjoining on the southern side and a single driveway from Cashel Street that services that structure. There is no developed garden at either the front or rear worthy of note.

The Development Proposal

14. The proposal is to construct an outbuilding to the rear of the existing dwelling for the purposes of a car garage as stated on the Development Application Form, but expanded upon in oral evidence by the appellant to include, as one would expect, domestic storage, domestic workshop, recreational goods storage, parking of a caravan and boat (to be purchased), and undercover recreational space.
15. The main part of the building would have dimensions of 10.0 metes in depth by 9.19 metres in width, with an adjoining rear toilet and bathroom of 2.0 metres by 2.99 metres, resulting in a floor area of some 97.88 square metres.
16. The proposed building is to have concrete block work (raw finish) walling and with a flat reinforced concrete slab roof. A roller shutter (to be a green colour as for the other trim) is proposed to the opening for vehicles with a width of 6.1 metres and a clearance of 2.4 metres. Two personal access doors are proposed, as are three high level windows to the northern elevation.
17. The building is to be sited zero metres from and along the southern boundary, 11 metres setback from the northern boundary and 6-8 metres setback to a new site-future allotment boundary to the west. (A transfer of land to the Council is apparently in-train and not yet finalised.) The building is to be elevated above the natural slope of the ground with a finished floor level set approximately at a maximum of 1 metre above the natural ground level at the north-western corner.
18. The proposed building is to have one floor level only, set down at the eastern end of the building by some 0.5 metres below the natural ground level and elevated by some 0.5-1.0 metres on the western side. It would have a maximum height of some 4.38 metres at its south-western corner (including brick piers and wall height), and generally 2.99 metres minimum height, though in part and in the south-eastern corner set down below ground level by approximately 0.5-0.8 metres.
19. The proposal plans indicate some filling of the natural ground level to the rear and north-western corner of an area adjacent to the building from which stairs are provided to the personal access door providing entry to the bathroom.
20. A paved area is proposed adjacent to the northern façade and the side entry door, which is built up to a level comparable with the finished floor level of the building and with filling necessary to achieve such level with a low retaining wall in the order of 0.3-0.6 metres to the northern side.
21. Rainwater tanks are proposed to be installed under the building between the finished floor level and natural ground level.
22. Stormwater is to be directed to the rainwater tanks under the building with the overflow to be directed to “grassed areas” on the subject land, although the plans show limited detail.
23. Vehicle access to the proposed building is to be gained via the existing semi-enclosed garage/carport and single width driveway to Cashel Street. This may require some modification to the existing structure, dependent on the intended vehicle height and take-off point for the new extended driveway to the west.
24. I am satisfied that the proposal is for a domestic outbuilding as that term is commonly used, including within the Development Plan.

The Locality

25. Comprising that part of the area surrounding the subject land of tangible influence on it and that this specific proposal affects, to a notable degree, I find that the locality is to be based on visual amenity and perception of character criteria. I note the boundary put forward by Mr Brunning and agree in general terms, although on my assessment it should be slightly more curtailed to the north, south and east on the basis of degree of visibility. All of the locality is in the same zone and policy area as the subject land, referenced above. The locality contains mostly dwellings, predominately single storey and with elevated portions or extensions, mostly detached in type on larger allotments, but with a number of two storey detached dwellings and a couple of recent infill developments on smaller allotments in Barnett Avenue to the west, with two visible from the rear of the subject land to the south-west (at No.33). Excepting the lower shallow valley portions, partial views are obtained from much of the locality to the Adelaide Plains to the west, north-west.
26. Dwellings and associated outbuildings are generally setback from property boundaries providing a reasonable sense of openness and space. There are a few exceptions with minor setbacks to certain outbuildings.
27. Dwelling stock is of varied age, quality, condition, form, style and appearance with some of new/modern/good condition but much in the medium-older age, traditional bungalow style and a number in only average to poor condition.
28. There are numerous outbuildings within the locality on the face of it used for domestic purposes ancillary to the primary residential use of land and in some instances there is more than one outbuilding on an allotment. Particularly noteworthy is the merged outbuilding with three elements on the adjoining land to the north.
29. The topography of the land within the locality also falls generally from east to west and in a number of instances dwellings are elevated on stumps/columns/piers in order to minimise the amount of filling placed on the land. With adjoining dwellings it was noted that some of the under floor areas were utilised for domestic storage and were not particularly attractive in appearance.
30. The locality is assessed to have a moderate-high level of amenity given its context and with semi-spacious garden settings, general vegetation and westward views to the Adelaide Plains and gulf.
31. Photographs of various outbuildings within the locality – Nos. 2-6 in Exhibit R2, are useful.

Relevant Development Plan Provisions

32. Having regard to the evidence and the submissions and to my own assessment, I find that the following provisions in the relevant Development Plan provide the most useful guidance, particularly with respect to the main issues in focus in this matter and they are:

METROPOLITAN ADELAIDE (MA hereafter)
Objectives: 9 and 43; and
Principles of development control: 9, 10, 11(a) and 15.

COUNCIL WIDE (CW hereafter)
Objectives: 4(f), 5, 14, 19 and 23; and
Principles of development control: 3(c), 17, 19, 20, 22-24, 26(c), 27(c), 40, 133(a), 145, 149 and 152-154.

RESIDENTIAL (CENTRAL PLAINS) ZONE (R(CP)Z hereafter)
Objectives: 1 and 2; and
Desired Character – Residential (Central Plains) Policy Area 8 (PA8 hereafter) paras 3 and 8; and
Principles of development control: 2 and 3 (and Table Mit/1).

Processing

33. The development proposal was assessed by the Council to be a Category 2 development and following limited neighbour notification as required, it appears that three representations were received from owners/occupiers at 107, 140 and 142 Cashel Street. It would also appear that no referrals were required or undertaken to Government agencies having regard to Schedule 8 of the Development Regulations.

Assessment Approach

34. Section 33(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.
35. In terms of s 35 and the relevant provisions of the Development Plan, this 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 R(CP)Z and PA8 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.
36. Whilst I have noted that the Development Plan guidelines are not mandatory, and are directory and persuasive, nevertheless 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 have also 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.

The Evidence

37. The appellant attempted to rely on the report and recommendation of the Council officer, Mr Fewster, however he did not call or subpoena him to provide oral evidence and to enable him to be cross-examined. In addition he put his own views as a lay person on the questions of visual amenity and character.
38. The evidence of Mr Brunning stands largely unrefuted, excepting an erroneous omission in having no (initial) awareness or regard for Zone Principle 3 and complying development conditions for a domestic outbuilding in Table Mit/1. His oral evidence responded to that adequately. In addition he appeared to duplicate the error made by the Council officer, Mr Fewster, in referring to a guideline of 56 square metres, which did not exist in the relevant version of the Development Plan. He acknowledged that error.

Planning Assessment

39. A domestic outbuilding associated with a dwelling on land is to be reasonably expected in the R(CP)Z and PA8, and in reality, almost all residential zones and areas. Hence, there is no land use/zoning issue requiring further detailed assessment. Domestic outbuildings meeting certain conditions prescribed in Table Mit/1, are by Zone Principle 3, complying development and must automatically (but subject to meeting any conditions or exceptions as may be set out by Regulations or the Development Plan), be granted Development Plan Consent (s 35(1)) of the Act.
40. In Nadebaum v City of Mitcham [1995] EDLR 587, His Honour Judge Bowering provided useful guides to assessment in similar circumstances that apply in this matter, where complying development conditions are not all met by a development, and his conclusions were as follows:

...

• One must be particularly careful in applying the standards specified in the Development Plan with respect to complying developments to the determination of applications not classified as complying developments. Frequently, as in this case, the very reason why the development concerned requires consent rather than being accepted as a complying development is that it fails to reach such standards. This does not mean that it should be refused, but rather that it should be assessed with regard to all relevant provisions of the Development Plan and in the light of all relevant matters, such as the character and amenity of the locality and nature and design of the development itself. Such a course frequently involves departing from the complying development standard, perhaps to a significant extent.
• If a proposed development fails to comply with various relevant provisions of the Development Plan, the fact that it complies with many of the complying development standards does not mean that it warrants consent.
• If a complying development standard (in this case a 420 square metre site area for a semi-detached dwelling) is specified as a standard applicable to all development by another principle – as Principle 23 does in this case – the failure of a development to comply (including the extent of such failure) with such principle is a matter which must be taken into account when deciding whether the development in question warrants approval.

...

41. In this matter, a comparison of the proposal against the complying development conditions highlights the following:

(a) accessory to an existing dwelling – met;

(b) not greater than 40 square metres in floor area (and as per CW Principle 23(b)) – proposed floor area of 97.8 square metres exceeds the condition/guide by some 144.5 per cent;

(c) not greater than 2.4 metres high to the top of walls (no allowance made for cut and fill effects on sloping land and as per CW Principle 23(c)) – proposed wall height of 2.99 metres (but in places toward the rear, walls on piers a maximum height of 4.38 metres above ground level), exceeding the condition/guide by some 24.6 per cent;

(d) siting behind the dwelling – met;

(e) of a size not to reduce the private open space requirement for the dwelling by more than 20 per cent and result in total floor area of buildings on the site exceeding 40 per cent of the area of the site – on the evidence, both met, a positive and reflective of the larger than now standard allotment size;

(f) no closer than 1 metre to a side or rear (non road) property boundary – zero setback for a length of 10 metres falls short of the guideline by some 100 per cent;

(g) finish on external surfaces to be a pre-coated colour – likely met for the roller shutter door, other doors and trim, but not met as proposed for the walls (raw besser block) or roof (concrete but flat and not readily visible);

(h) no reduction in existing onsite parking spaces – met and exceeded by the provision of (net) additional parking spaces; and

(i) any driveway to the proposed outbuilding being at a gradient of less than 1 in 5; if evidence of the appellant relied upon a fall of 2.9 metres over some 15 metres or 1:5.17 or 19.33 per cent would arise, a less steep gradient; however, from information gleaned from the site plan a fall of 3.5 metres (RL 96.00 to FFL with a garage of 92.5 metres) over approximately 13 metres or a grade of 1:3.71 or 26.92 per cent, a steeper grade than the condition would result. Potentially capable of compliance but subject to accurate levels and other data.

42. Hence, the crucial issues for more detailed qualitative and locality based assessment and the crux of the decision are:
    • floor area size (a significant exceedance);
    • wall height size (a moderate exceedance);
    • combined perception of degree of bulk (subjective);
    • side boundary setback (a moderate exceedence); and
    • to a lesser extent (and capable of easy rectification) – external surface colours;
      

all with respect to impact on the “rear yard” private visual amenity of neighbouring properties (approximately six; two to the north, one or two to the south and three to the west). There would arise negligible impact to the streetscapes or public realm amenity in Cashel Street or Barnett Avenue.

43. The most affected area is a relatively small, amphitheatre like valley with each property having partial views across/up and down and to the rear of various dwellings and outbuildings. To the west and south there are numerous small outbuildings; to the north there is one group of three joined outbuilding elements adjacent to the northern boundary of the subject land and the balance includes more standard-conventional sized and appearance of outbuildings.
44. The relative qualitative guides are as follows:

METROPOLITAN ADELAIDE
...

Objective 9: Safe, pleasant, convenient and efficient residential zones.

Achievement of this objective can be assisted by development t hat is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight. Sunlight access, for example, not only benefits amenity, but also is necessary to enable effective use of solar energy collection systems.

These systems are affected by building and allotment orientation and by shadowing from buildings and trees, and accordingly, it is desirable to protect existing collectors and recognise potential for use on sites adjacent to a development site.

...

Objective 43: The amenity of localities not impaired by the appearance of land, buildings and objects.

PRINCIPLES OF DEVELOPMENT CONTROL

...

9. Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.

...
11 Landscaping of development in residential zones should:

(a) enhance residential amenity;

...

...

15. Residential development should be appropriately designed to take account of the climatic and topographic conditions of the site.
    

COUNCIL WIDE

...

Objective 14: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas.

...

PRINCIPLES OF DEVELOPMENT CONTROL

...
3 New housing and other urban development should:

...

(c) create a safe, convenient and pleasant environment in which to live.

...
19 Buildings should be sited with respect to property boundaries so as to:

...

(c) minimise the impact of bulk and scale of development on adjoining properties;

(d) create space between buildings for landscaping, maintain the character of the locality and help prevent a continuous facade of built-form viewed from the street;

...

(f) provide adequate space to maintain areas between buildings and property boundaries in a clean, safe and healthy condition; and

...

(c) where development adjoins a side boundary, it should -

(i) not adjoin more than 12 metres of the length of the boundary;

(ii) not have a wall greater than three metres high located on the boundary; and

(iii) wherever possible, have a separation of at least 2.5 metres from at least one neighbouring dwelling.
...

23. Domestic outbuildings should be of a design, size, finish and location that minimises visual intrusion with respect to adjoining properties and the streetscape, and does not significantly reduce useable outdoor space.
    

Outbuildings should accordingly satisfy the requirements that they are to be:

...

(b) not greater than 40 square metres in floor area;

(c) not greater than 2.4 metres to the top of the walls and 3.6 metres high to the top of the gable (if relevant);

...

(e) sited at least 1.0 metres from an adjacent property boundary;

(f) of a size that does not result in a loss of more than 20 percent of the required provision of private open space associated with the dwelling under this Development Plan; and

(g) finished on the external surfaces in a colour that matches or blends with any existing dwelling on the site, and is in keeping with the character of the locality; metal clad walling or roofs are to be of a pre-coated finish unless specified otherwise within a particular zone.
...
27 ...

(c) Development should provide landscaping that enhances the appearance and amenity of the site and complements the desired character of the locality. Landscaping should incorporate species of a type and size appropriate to their location, and have regard to the species contained in Table Mit/2.
...
133 Development should not impair the character or nature of:

(a) localities, spaces, buildings or structures;

...

(c) localities, spaces and sites of natural beauty.

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

...
149 Development should incorporate landscaping as an integral part of the design of the

development.
...

154. Landscaping should enhance the appearance of development, establish visual buffers to adjacent development and screen service, loading, outdoor storage and car parking areas.

[my underlining]

45. I have also noted the evidence of Mr Brunning and the report/recommendations of Mr Fewster.
46. Firstly, in terms of size, the building height is moderately above the complying condition, however, it essentially accords with CW Principle 19(c) with respect to height and length. The absence of a roof obviously reduces height (and bulk) by about 0.6-1.0 metres and its flat form is not out of character with the wide range of dwelling, extensions and outbuilding roof forms, which includes several skillion and/or flat roofed structures.
47. The proposed floor size is obviously significantly at variance with the guides – more than double the area. This would manifest itself in a view particularly from the north-west and south-west, where both length, width (and height – elevated at the rear on piers) would be apparent. It would seem theoretically possible under separate applications, meeting complying development conditions, to have approved and erect, two or more 40 square metre buildings, very close to each other, provided private open space retention and total floor area of buildings on the site percentages are met (achievable on a large site area like the one in question), and these could be of similar overall form and appearance as the one larger outbuilding proposed. However, they would be lower (0.6 metres at least) and set off property boundaries by at least 1 metre.
48. I am unable to put so much weight on Zone Principle 3 and the complying development table and conditions to justify consent of this proposal when clearly as an “on merit” development, work must be given and weight afforded to all relevant guides within the Plan including, particularly, CW Principle 19(c) and (d), and 23. The proposed building will, on my assessment, be relatively bulky for an outbuilding, visually intrusive with respect to adjoining properties and not maintain or enhance visual amenity of central parts of the locality comprising the rear yards of several adjoining/adjacent properties. It would be somewhat out of character with most outbuildings (except the conglomerate of older structures to the north, presumably built many years ago, probably pre-dating current day Development Plan planning guidelines). I also assess and take into account the fact that an outbuilding of the kind proposed, could potentially, be made more acceptable, possibly even worthy of consent, if it were set in from the side boundary at least 1 metre but preferably 2 or 3 metres, if a detailed quality landscaping proposal was included and integrated to substantially screen the structure from general view from the west, north and south, and if cutting/filling and landscaping were maximised and external colours/materials were acceptable to blend into the semi-natural environment, all so as to create an enhanced visual experience. Heavy and sole reliance on landscaping to screen the building to “solve the problem” of its size, is generally not acceptable.
49. The appellant was reluctant to amend his proposal to achieve such outcomes. As a consequence, his proposal will detract from visual amenity of a substantial central part of the locality. It is true and acknowledged, that it would have only minimal impact on visual amenity along Cashel Street or Barnett Avenue, or those streetscapes due to its siting behind dwellings, well down the slope and partially screened from the street view. However, in this instance it is not appropriate for the appellant to be granted approval for the large shed that he seeks on the specific allotment and in the specific locality having regard to the Development Plan.
50. If consent had been forthcoming, greater accuracy and details of levels, driveway grade, retaining walls, as well as external finishes, colours and landscaping would all be essential.

Conclusions

51. For the reasons outlined above, I assess and I find that the proposal is too extreme and does not sufficiently meet relevant guidelines concerning visual intrusion, visual amenity or character and that it will negatively affect, and to a sufficient degree, the visual amenity of a central portion of the locality and as enjoyed by several adjoining and adjacent neighbouring properties.
52. In terms of the reference in the Act, I do not assess it to be seriously at variance with the Development Plan, but find it to be sufficiently at variance and hence warranting refusal. In that conclusion, I agree with the overall opinion of Mr Brunning and the decision of the Council’s Development Assessment Panel.

Decision

53. The appeal is dismissed and the decision of the Council upheld.
54. There will be an order to that effect.