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CAPITAL ARCHITECTURE PTY LTD v DISTRICT COUNCIL OF MOUNT BARKER [2010] SAERDC 19 (21 April 2010)

Last Updated: 22 April 2010

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.


CAPITAL ARCHITECTURE PTY LTD v DISTRICT COUNCIL OF MOUNT BARKER


[2010] SAERDC 19


Judgment of Commissioner Mosel


21 April 2010


ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for a shopping centre – Neighbourhood Centre Zone – Mount Barker Historic (Conservation) Policy Area 19 – consent refused by the Council – the land and site for development differentiated – general thrust of the Development Plan identified – whether the proposal constitutes “minor retail” development considered – whether effective compliance with Principle 130 also satisfies Zone Principle 6 considered – the Environment Protection (Noise) Policy a factor to consider – the proper application of car parking rates determined – the failure of the proposed development to minimise acoustic impact and the excessive departure from the relevant car parking guidelines sufficient to reject the proposal – appeal dismissed.

Development Act 1993 (SA); Development Reglations 2008 (SA); Environment Protection Act 1993 (SA); Environment Protection (Noise) Policy 2007 (SA), referred to.

Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356, considered.


CAPITAL ARCHITECTURE PTY LTD v DISTRICT COUNCIL OF MOUNT BARKER
[2010] SAERDC 19



THE COURT DELIVERED THE FOLLOWING JUDGMENT:


  1. On 10 October 2008 Capital Architecture Pty Ltd (“Capital Architecture”) applied to the District Council of Mount Barker (“the Council”) for development plan consent to build a shopping centre on a parcel of land made up of the following contiguous properties in the Littlehampton township:

2 West Terrace (Certificate of Title Volume 5243 Folio 56)

74 North Terrace (Certificate of Title Volume 5808 Folio 954)

76 North Terrace (Certificate of Title Volume 5725 Folio 442).


  1. The Council processed the application as a Category 2 development. On 29 July 2009 the Council resolved to refuse the consent sought. Capital Architecture appealed to this Court against that refusal.
  2. After the application was lodged with the Council, the design and layout of the proposed shopping centre was the subject of negotiations between the Council’s staff and Capital Architecture. Several revisions to the proposal were made prior to the Council undertaking its assessment and making its decision. The most significant (but not the only) issues under discussion were the siting of the building on the land, its mass and scale, and its architecture. The bundle of plans tendered for the purposes of the hearing make up Exhibit A1. The design and layout of the proposal depicted therein are essentially the same as that considered by the Council. During the course of the hearing, the plans in Exhibit A1 were modified by the plans and details in Exhibits A2, A4, A8, A9 and A10.
  3. At the hearing Mr Henry SC appeared for the appellant. Mr Psaltis appeared for the Council. The following gave evidence in the appellant’s case: Ms M Mellen (traffic engineer), Mr J Turner (acoustic engineer), Mr J Schulz (heritage architect), and Mr J Sposito (dry grocery warehouse manager). In the case for the Council, the Court heard from Mr F Siow (traffic engineer), Mr P Maddern (acoustic engineer), Mr S Weidenhofer (heritage architect) and Mr D Batge (planner).

The land

  1. The land is situated in the south-western quadrant of the intersection of North Terrace, West Terrace and Junction Road (“the intersection”). It has frontages to North Terrace and West Terrace of 55.98m (including the corner cut-off) and 61.15m respectively. The site plan forming part of Exhibit A1 shows the land has an area of 3,957m².
  2. The land slopes from its southern boundary downwards toward North Terrace. In broad terms, the difference in height of the land along the southern boundary and along North Terrace varies from about 3.3m to 4.5m.

The locality

  1. The land is situated in the Neighbourhood Centre Zone (“the Zone”) in the Council’s Development Plan (“the Plan”). The version of the Plan relevant in this matter is dated 2 May 2008. Most of the land is also within the Mount Barker District Historic (Conservation) Policy Area 19 (“the Policy Area”).
  2. For the purposes of his assessment against the heritage provisions of the Plan, Mr Schulz identified a locality (p10 of Exhibit A7). Mr Batge also defined a locality for the purposes of his assessment (Attachment 2 of Exhibit R5). Although Mr Batge’s assessment, in the main, is against different provisions of the Plan, his locality is very similar to that identified by Mr Schulz.
  3. All things considered, the locality identified by Mr Schulz best represents the area within which the planning, heritage, traffic and amenity impacts will be experienced. Although Mr Weidenhofer did not prepare a locality plan, the relevant locality would not be inconsistent with the basis upon which he undertook his assessment.
  4. The outer perimeter of the locality is roughly defined by the following:

(1) the rear boundaries of the properties with a frontage to North Terrace that are between a point about 200m west to a point about 300m east of the intersection;


(2) the rear boundary of properties that have a frontage to Junction Road and West Terrace that extend from a point about 150m north and south of the intersection;


and


(3) the properties on the northern side of Blundy Way to a point about 150m west of West Terrace.


  1. The land is wholly within the Zone. Two of the three allotments are within the Policy Area. The majority of the properties within the locality are within both the Zone and the Policy Area. Several properties within the locality are in the Residential Zone.
  2. At section 4.0 of Exhibit R5, Mr Batge sets out in comprehensive terms the principal features within the locality. Mr Batge describes the locality as one comprising “a mix of uses ranging from dwellings on large sites at low density, a place of worship, café and restaurant, petrol filling station...”. As to the siting of buildings, Mr Batge said that there exists “...varying building setbacks, with dwellings predominantly set well back with the commercial building [sic] set either on or with [sic] a few metres of the street boundary.”
  3. Generally I concur with these views and those of Mr Batge below in respect of North Terrace in particular:
The character of the North Terrace streetscape is derived from the mix of uses comprising low density residential and small town main street types of development with buildings that are generally small in scale and reflect its heritage as a small hills town. The larger of the buildings comprise the Great Eastern Hotel, Institute Hall, petrol filling station, and new medical centre development, all on the north side of North Terrace and the east of Junction Road.
  1. As to the several aspects in the locality that bear on the assessment of the proposal against the heritage provisions of the Plan, I prefer to adopt the following observations of Mr Schulz. At pp8-9 of Exhibit A7, Mr Schulz commented on the heritage places (residential and commercial) in the locality in the following terms:
... residential development is typically well set back from the street, and often concealed by well established landscaping. This accordingly reduces its built form contribution to the locality. Typical residential characteristics include:
Commercial places within the locality are typically characterised by:
  1. Mr Weidenhofer, however, raised certain matters of detail that are for consideration. They include the building material used in the local heritage places and contributory buildings (sandstone, bluestone, red and light coloured bricks, rendered masonry, timber windows and corrugated iron cladding), the way in which the frontages of the shops on the southern side of North Terrace are articulated, and the (relatively small) scale of each of the buildings.
  2. The lists of Local Heritage Places (“LHP”) and Contributory Items (“CI”) are set out respectively in Tables MtB/12 and MtB/15. The properties to which the evidence of Mr Schulz and Mr Weidenhofer was mainly directed are situated at 70 Princes Highway (referred to as the “Coppins Store” - LHP), 71-73 Princes Highway (Great Eastern Hotel – LHP), 75 Princes Highway (Peace Memorial Institute - LHP) and 82 Princes Highway (1930s pair of shops – CI).[1]

The site for development

  1. The Court was informed that portion of Certificate of Title Volume 5725 Folio 442 will be the subject of acquisition by the Commissioner of Highways for road purposes; namely to construct a roundabout at the intersection. When the view of the land and locality was taken, it was evident that the early phase of construction had commenced. With the consent of the parties, the hearing proceeded on the basis that the site for the proposed development excluded a (roughly) triangular shaped parcel of land, 88m² in area, situated on the corner of North Terrace and West Terrace.
  2. Drawing No. 8022-SK01.1 indicates, by way of the diagram labelled “Option B”, the area to be acquired. The proposed development to which the Council’s decision relates is modified to the extent depicted in the abovementioned diagram. Overall, the development site would have an area of about 3,869m².

The proposed development

  1. Capital Architecture proposes to demolish all of the existing buildings on the land, remove a significant tree[2], and construct a building containing seven shops, a mall and the usual service facilities. The total net lettable area of the shops is 1,407m². The largest of the tenancies (844m²) would be occupied by an “independent grocer” – that is, a supermarket. The other tenancies vary in area from 57m² to 172m². The public mall and service areas amount to 154m². The floor area of the entire building is about 1,560m².
  2. The building would be positioned in the south-western corner of the land such that its western wall is on the western boundary and its southern wall is 1.6m from the southern and common boundary with land in the Residential Zone. The building would be about 18m from the North Terrace boundary and between 19-36m from the West Terrace boundary.
  3. Quite extensive cut and fill is proposed. Drawing No. 8022-SK01.5 indicates that excavation in the south-western corner would be about 2.2m. The maximum depth of fill (along the front building alignment) would be about 1.2m. Fill, in the order of 0.8m deep along the North Terrace boundary, would be necessary to form suitable levels for the surface of the car park.
  4. The car park would wrap around the northern and eastern perimeter of the development site. The design of the car park, as depicted on Drawing No. 8022-SK01.1, would be modified by the diagram marked “Option B” on that drawing and further amended by Drawing 1000024_01_SK01 tendered as Exhibit A8. In total, 71 spaces would be provided. Car parks numbered 33-39 inclusive would be quarantined from use between the hours of 7am-10am to enable the manoeuvring of delivery vehicles.
  5. Landscaping would be established along the North Terrace and West Terrace boundaries of the development site in accordance with Drawing No. 8022-SK01.2 (amended by the diagram marked “Option B”). For the most part, the landscape strip along the road boundaries is about 0.7-0.8m wide (including retaining plinths). Six trees would be planted between the southern boundary and car parks numbered 33-46 inclusive in accordance with Drawing No. 8022-SK01.10 (Exhibit A9).
  6. The interface of the car park and the adjoining land to the south would be defined by a 2.4m high fence (when measured from the ground level of the adjoining land) constructed atop the proposed retaining wall. Where the rear wall of the building would be near the southern boundary, a screen comprising a (creeper covered) trellis above a fence would be constructed. When viewed from neighbouring property, the height would vary from 2.4-3.3m. The setback of the rear wall of the building and the southern boundary is 1.6m. Within this area of the land Exhibit A1 depicts the intention to install several “slimline” water tanks. Section A-A in Drawing No. 8022-SK01.3 depicts, conceptually, trees to be planted within this area. However, there are no details of the specific number or plant species.
  7. While putting a label to the architecture of the building is not necessary for the purposes of the assessment, to complete the picture it might be described as “post-modern” or “contemporary”. Mr Weidenhofer summarised its design and appearance in the following terms:
The building is essentially square in plan, with parapet wall 5 metres high concealing a flat roof form behind. The mall entry is given additional emphasis and an atrium roof is provided over the mall area.
Principal materials notated on the drawings refer to selected stone veneer on cement sheet substrate, painted rendered masonry, aluminium framed windows and red gum supports for the sun shade device on the east elevation (tenancy 7).
  1. At the commencement of the hearing, Mr Henry SC, for the appellant, amended the proposed development by deleting from the plans all references to free standing advertising structures.
  2. To assist the assessment of the proposal’s predicted noise emissions and expected traffic movements, Mr Henry called Mr Sposito to give evidence. Mr Sposito is the warehouse manager of IGA, the supplier of dry groceries to the supermarket. In summary, Mr Sposito said that for a supermarket of the proposed size, the delivery of dry goods would:
  3. From his general knowledge, Mr Sposito also said that other deliveries for milk and related products is likely two times per week using smaller delivery vehicles.

The Development Plan

  1. The proposed development involves the construction of shops on land in a designated Neighbourhood Centre Zone. The southern boundary of the land and the Zone constitutes the northern boundary of land either occupied or intended to be occupied by residential development. At the broadest level of assessment there can be no valid objection to the use of the land for a retail centre. From the evidence and submissions, it is clear to me that the appeal turns on whether the scale, design and likely impacts of the proposal adequately satisfy the relevant provisions of the Plan that deal with acoustic and visual amenity, car parking, traffic engineering, and the conservation of the heritage character of the locality.
  2. The policy intent for a development the subject matter of this appeal is not easily summarised. The relevant objectives, principles, desired character statements and heritage design guidelines form complex layers of (quantitatively and qualitatively) expressed policy directions for centres generally and for the Zone, Policy Area and the township of Littlehampton specifically.
  3. In respect of the Zone, the policy intents of most relevance in this appeal are expressed in the following objectives and principles.
Objective 1: A zone providing for minor retail and service development catering for the day-to-Day [sic] needs of residents.
Objective 2: A safe and convenient environment for the movement of both pedestrian and vehicular traffic within and to and from the zone.
Objective 3: The zone developed in a manner which is compatible with the adjoining residential zones in terms of appearance, traffic generation, noise, lighting and waste emissions.
  1. Development should be for minor retailing and minor services.
...
  1. Development should not produce noise pollution, traffic volumes or other disturbance to an extent likely to adversely affect the residential use and amenity in adjoining zones.
...
  1. Development adjacent to the adjoining Residential Zone should be designed so as to minimise the impacts upon residences in the adjoining zone. This can be achieved by a combination of, but not limited to, the following:
(a) utilising noise attenuation devices and building design to minimise the emission and effect of noise;
(b) providing visual relief by way of significant landscaping on the perimeter of the commercial site and within vehicle parking areas;
(c) locating and orientating buildings, vehicle access points and advertisements away from the adjoining Residential Zones;
(d) locating waste collection and storage areas away from the Residential Zones and within the commercial buildings; and
(e) limiting the hours of operation.

  1. The first point to note here is that the Zone is not exclusive to Littlehampton. It also captures land within the township of Nairne. The second point of note is that the resolution of certain aspects of this appeal should be undertaken in conjunction with several Council wide provisions for centres and shops. Principle 129, for example, reinforces Objective 3 and Principles 3 and 6 above with the general requirement for centre development to have minimal adverse impacts on residential areas. More specifically, the maximum noise emission standards are expressed in Principle 130:
Development should be designed to achieve 50/60dB(A) in a centre zone and 45/55dB(A) where the land is within 100 metres of a Rural (Living), Residential, Deferred Urban or Landscape Zone.[3]
  1. Other Council wide principles of most relevance are directed toward car parking and the movement of people and goods generally. Objective 3 for the Zone is supported by Principle 141. That principle, by reference to Table MtB/3, establishes the desired car parking rate as 5.5 spaces per 100m² of total floor area. Where development fails to comply with the car parking guidelines in Table MtB/3, the Plan speaks against development unless the provisions of Principle 142 are observed. By virtue of Principles 142(a) and (b), any shortfall in the amount of car parking should be remedied by providing car parking on a suitable alternative site or in conjunction with adjoining business.
  2. Objective 3 and Principle 6 for the Zone are also reinforced by Council wide Principles 126, 127, 128, 138 and 140:
    1. Provision for the movement of people and goods within, centre zones, should comply with the following:
...
(c) The separation of pedestrian and vehicle movements within zones is desirable to ensure safety and convenience.
...
(e) Car parks should be orientated to facilitate safe and convenient access of pedestrians between them and the facilities they serve.
...
(g) Adequate and convenient provision should be made for service vehicles and the storage and removal of waste goods and materials. Such facilities should be located, designed and screened so as to not detract from the appearance of the centre zones or result in detrimental impacts upon adjoining land or buildings.
  1. Landscaping should form an integral part of centre design, and be used to foster human scale, define spaces, reinforce paths and edges, screen utility areas, and generally enhance the visual amenity of the locality.
  2. Centres should develop on one-side of a primary, or primary arterial, road, or one quadrant of a primary, or primary arterial, road intersection. Where centre facilities already straddle a primary or primary arterial, road, or the intersection of two primary, or primary arterial, roads, development within them should:
(a) concentrate on one-side of the primary, or primary arterial, road, or one quadrant of the primary, or primary arterial, road intersection; and
(b) minimise the need for pedestrian and vehicular movement across the primary or primary arterial, road, from one part of the centre to another.
  1. Development should include appropriate provision on site to enable the parking, loading, unloading, turning and fuelling of vehicles.
140 Development should conform to the following access and car parking principles:
(a) safe and convenient access and egress should be provided for private cars, cyclists, pedestrians, service vehicles, emergency vehicles and public utility vehicles;
(b) access points onto public roads should be located and designed in such a way as to minimise traffic hazards and intrusions into adjacent residential areas;
(c) car parking areas should be located and designed in such a way as to ensure safe and convenient pedestrian access from vehicles to facilities, safe and convenient traffic circulation, minimal conflict between customer and service vehicles and adequate provision for manoeuvring into and out of parking bays.
...
(f) landscaping should be provided and maintained in order to shade and enhance the appearance of car parking areas.
  1. The next layer of policy is found in the provisions for the Policy Area. The third point to note is expressed in the Introduction to the Zone. That is, the objectives and principles applying to the Policy Area in respect of Littlehampton “are additional to those expressed for the whole of the Council area and for the Neighbourhood Centre Zone and take precedence where a conflict occurs between the policy area and Zone provisions”. The overall goals for the Policy Area that are relevant to the assessment are expressed in its following objectives:
Objective 1: A policy area that conserves heritage value and historic character.
...
Objective 3: Development that conserves, enhances and maintains the historic character and cultural significance of land, buildings and structures within the policy area as expressed in the relevant Desired Character Statement.
  1. The Policy Area has wide geographic application. It extends well beyond the area depicted on Figure MtB HP/5. The Introduction to its Desired Character Statements (“the DCS”) sets out its scope in the following terms:
The Mount Barker District Historic (Conservation) Policy Area 19 is comprised of distinct and unique historic areas representing the early European urban built form and landuse settlement patterns of the District, including Callington, Dawesley, Echunga, Kanmantoo, Littlehampton, Macclesfield, Meadows, Mount Barker and Nairne.
  1. There is also a DCS for each of the above settlements (or townships). The Plan cites the purpose of each DCS as being:
... to ensure the management of heritage characteristics including; landuse, settlement pattern, landscaping and built form, associated with each area and intended to be the basis of what the future character of policy areas will provide for future generations.
  1. The Introduction also expresses the goals to be achieved by new development as follows:
Development should respond to the unique historic context of each policy area, including the cultural and ethnic attributes, by appropriate architectural design, colours and building materials consistent with the Objectives and Principles of the policy area. In addition, signage, fencing, car parking design and layout, land use changes, land division and infill development should positively contribute to the quality of the historic environment.
  1. The Policy Area also sets out several principles that apply to all of the townships the subject of its provisions. The most relevant are as follows:
    1. Development in the Policy Area or adjoining a place of heritage significance identified in Tables MtB/11, 12 and 15 should utilize contemporary architectural design and detailing that complements the external materials and finishes, colours, scale, built form, building height, roof shape and pitch, boundary set-back and fencing of development within the zone or the adjoining heritage place.
...
9 Development within commercial main street areas should:
(a) be of a high quality design that reinforces the siting and alignment patterns prevailing in the streetscape;
(b) locate car parking to the rear of existing buildings where such a built form already exists or is desirable; and
(c) be undertaken to street alignment with, where appropriate, verandahs constructed over the footpath on main street frontages.
  1. Development should not be undertaken unless it is consistent with the desired character statements for the policy area.
  2. Development within the policy area should take design cues from the Local Heritage and Contributory Items listed in Tables MtB/12 and 15 and be responsive to the Heritage Design Guidelines in Table MtB/16. In doing this it is not necessary to replicate historic detailing, however design elements for consideration should be compatible with Local Heritage places and Contributory Items and should include consideration of but not be limited to:
(a) scale and bulk;
(b) width of frontage;
(c) boundary setback patterns;
(d) proportion and composition of design elements such as roof lines, openings, fencing and landscaping;
(e) colour and texture of external materials; and
(f) visual interest.
  1. Principle 11 above calls for, inter alia, development to be “responsive” to the guidelines in Table MtB/16. The guidelines of most relevance are as follows:
“Infill development” includes wholly new development on the site of a heritage place, on a vacant or newly subdivided allotment in a Historic (Conservation) Policy area, or on sites that are in the vicinity of heritage places. The following also applies to additions and alterations. New infill development should be designed to be of a scale, siting, form, roof pitch, detailing and proportion complementary to the heritage character of the area while avoiding confusion between new and old.
Reproduction ‘heritage’ features should be avoided when they do not observe and respect nuances of local historic character. The preferred approach is to keep it simple. Infill development can be openly contemporary in design when it is relates harmoniously with existing heritage character, scale and form. Incorporating basic design elements such as characteristic roof forms and massing of the original development assists to integrate the new work. The use of contemporary construction methods and detailing is appropriate, providing the distinguishing historic qualities of earlier buildings are retained.
New infill development should be sited so that the prominence of heritage buildings is maintained. This can be achieved by continuing the traditional pattern of setbacks from front and side boundaries. Where possible, new infill buildings should be set back from adjacent heritage buildings to maintain or enhance their prominence in the streetscape.
New development, whether infill or additions to existing buildings, should allow existing heritage buildings to remain the dominant visual element on the site or in the locality (both in height and width).
The scale should relate to traditional and/or adjacent roof ridges, eaves lines and general building silhouettes present within the immediate locality.
New building forms should relate to surrounding development and the scale and form of a new building should complement existing buildings and minimise visual intrusion.
The set-back of buildings along the street should complement the proximity of the historic buildings to the street alignment. Subtle variations in set-back are encouraged to create visual interest.
  1. The DCS for the township of Littlehampton sets out certain goals for the management of its heritage characteristics. The following excerpts are relevant to the assessment.
Patterns of Development
The area predominantly comprises buildings and structures associated with local rural production, the provision of commercial and community services and 19th century colonial cottages set high above the footpath. The policy area will offer residential and local centre uses which are complimentary to existing historical development in their design, style and siting. Subdivision, unless it preserves the visual setting of buildings, the quality of the vegetated and open landscape, and does not comprise the linear subdivisional layout is discouraged.
Built Form, Building Design and Character
The area will reinforce the small scale, single storeyed, built form of early European settlements. Development should maintain the existing pattern of development, including the prevailing siting pattern and addressing the street. Development should be set back further than neighbouring Local Heritage or Contributory Items, with carports, garaging and outbuildings recessed from the main frontage and located to the rear of the allotment.
Materials will continue the tonal and textural qualities of existing heritage buildings with similar style and patterns of windows and opening, and masonry comprising bricks of a compatible colour to the historic Littlehampton red brick, stone or smooth rendered finish to exterior walls. Bricks of light shade / brown, beige or cream are inappropriate. Roof forms should maintain a simple gable of similar scale, pitch and proportions to those existing; with roofing materials preferably heritage corrugated or unpainted galvanised iron.

The evidence

  1. The following summarises the expert evidence received on the issues that go to the heart of the subject matter of the appeal.

Acoustic impact

  1. Mr Turner and Mr Maddern were on common ground on many of the issues for consideration arising from the emission of noise. For the most part they agreed as follows:

(1) The principal acoustic impact would be generated during daytime hours and experienced near the southern boundary of the land where part of the car park, the principal access for loading (into the supermarket), and the refuse collection area is in close proximity to the house immediately to the south.


(2) Whilst there would be a range of noise sources[4], the source of most concern would be from large delivery trucks that are fitted with a refrigeration system. Both accepted that during the period of off-loading (30 minutes duration, twice per week), the refrigeration would continue to operate.


(3) The noise experienced by a person standing in the front yard of the adjacent dwelling would be between 56dBALeq (Turner) and 58.2dBALeq (Maddern). Mr Turner opined that, at 56dBALeq, the proposal satisfied all relevant provisions of the Plan. At first, Mr Maddern rejected such a conclusion. In his view, a penalty of 5dBA[5] should also apply to Principle 130 thus creating an unacceptable departure from Principle 130. Nevertheless, after lengthy consideration during cross-examination, Mr Maddern conceded that in that (worst case) scenario, insufficient grounds existed for rejection on the basis of the non-compliance with Principle 130 assuming the deliveries were limited to four per week arriving on separate days.


  1. Mr Turner and Mr Maddern also considered the proposal against the Environment Protection (Noise) Policy 2007 (“the EPNP”). I do not think there is any disagreement that the applicable day time average goal noise level is 57dBA and that a 5dBA penalty should apply (reducing the threshold to 52dBA)[6]. They appear to agree that, assuming that deliveries (by a vehicle similar to that described by Mr Maddern in sections 6.4 and 6.5 of Exhibits R4) were limited to two per week, there are grounds to excuse the exceedence when the factors set out in Clause 19 of the EPNP are considered.
  2. The opinions of Mr Turner and Mr Maddern were formed on the basis that there would be, on the southern boundary, a 2.4m high fence constructed in a way that achieves the predicted noise emissions on the adjoining land. Considering their evidence as a whole, it seems that unqualified compliance with Principle 130 and the EPNP would only be achievable in circumstances where the refrigeration systems were shut down while the delivery vehicle remained on the land or the height of the fence was increased to about 2.9m. They agree, as do I, that the former is not a viable or likely scenario for the control of noise emissions.

Car parking and traffic engineering

  1. The arrangement for car parking set out on Drawing No. 8022-SK01.1 would be modified by the plans in Exhibits A4 and A8. Although the evidence of Ms Mellen and Mr Siow raises questions about the adequacy of the number of car parks and whether vehicles (in particular, large delivery vehicles), can enter, manoeuvre within, and exit the land in a safe and convenient way, there are points on which they agree.
  2. The first matter of agreement concerns the basis for applying the car parking rate set out in Table MtB/3 (Principle 141 refers). A rate of 5.5 spaces per 100m² of total floor area is the relevant guideline[7]. Both proceeded on the basis that the rate applies to the net lettable floor area.
  3. The second aspect of general agreement concerns on-site manoeuvring of large delivery vehicles. The manner in which this would be achieved is set out in the plans prepared by Ms Mellen, Exhibits A4 and A8. Mr Siow raised no serious concerns about the swept path analysis undertaken by Ms Mellen provided the delivery vehicle did not exceed 14.1m in length. That said, it is clear from Mr Siow’s evidence that, if a larger vehicle was to be used, there is a real prospect of on-site manoeuvring difficulties and car / delivery truck conflict occurring.
  4. The principal difference between Ms Mellen’s and Mr Siow’s evidence is in the number and effectiveness of the proposed car parking arrangements. The proposal sets out a parking area for 71 spaces within the development site. When the rate of 5.5 spaces per 100m² is applied to the 1,407m² of net lettable floor space, a deficiency of seven spaces results.
  5. Ms Mellen is not concerned with the departure from Principle 141. The proposed rate of five spaces per 100m² of net lettable floor area, Ms Mellen said, is consistent with her analysis of car parking demand on several shopping centres including one situated in Balhannah – a nearby hills township. I gained the impression from her evidence that the car parking rate in Table MtB/3 did not take into account several factors that have occurred in shopping habits that have had the effect of reducing or spreading peak parking demands. In any event, Ms Mellen opined, the shortfall would have minimal impact on the adjacent roads.
  6. Mr Siow acknowledged that some departure from the rate in MtB/3 might be justified. However, he said in effect, that the gap was too large and would be exacerbated by several factors. First, car park No.9 (Option B) is difficult to use. Secondly, car park No.47 prevents access to the large refuse bin area that he expects would need to be cleared twice per week. Thirdly, Mr Siow opined that any justification for a lower car parking rate, by reference to existing centres, should be treated with particular caution. A new shopping centre, he said, may have very different trading characteristics (and thus a different demand for car parking) from those with which the comparisons are made. Finally, he opined that the adjacent road works and the distance to the nearest public car park effectively reduced or eliminated the availability of alternative car parking areas (thus implying a conflict with the intention of Principle 142).

Conservation of heritage character

  1. Mr Schulz and Mr Weidenhofer, both experienced heritage architects, considered whether the form, siting and detailed design of the proposal satisfied the many provisions of the Plan directed toward the management of the Policy Area’s heritage characteristics.
  2. Mr Schulz’s support for the proposal is generally founded on the following opinions:

(1) By recessing the proposed building some distance from the public roads, as a general principle, is not inconsistent with the siting of the two most prominent of the local heritage items (the Great Eastern Hotel and the Memorial Hall), and would ensure their prominence being retained in accordance with the explicit terms of the guidelines in Table MtB/16.


(2) On the question of the scale of the proposed building, Mr Schulz acknowledged that it would be, if established, the largest in the Zone and Policy Area. Nevertheless, in his opinion, when its setback, the relatively concealed position of the loading area, and several design factors which result in a building of dominant horizontal proportions are taken into account, a reasonable balance is struck between the several competing provisions in the Plan.


(3) As to the overall form and design detail of the proposed building, Mr Schulz conceded that it failed to incorporate a roof that resembled the form of the most prominent of the local heritage places mentioned above and failed to incorporate matching materials. Instead, Mr Schulz argued, the proposal adopts a parapet / low pitched roof design using as the cue the “Coppins Store” further to the east, the consequence of which is to achieve other “beneficial design relationships with surrounding heritage places” (Transcript p145). Furthermore, Mr Schulz argued, the materials are consistent with “commonly used ... contemporary building technique” and are compatible with the texture and tone of the relevant heritage place (Transcript p148).


  1. Mr Weidenhofer was critical of several aspects of the proposal on his assessment against the provisions for the retention of heritage character. However, he conceded in cross-examination that it would be unusual for the design of a building within a heritage conservation environment to meet the “universal acclaim”, (Mr Henry’s words), of all heritage architects and, overall, I did not gain the impression from him that he favoured a design solution based on strict adherence to or literal interpretation of the Plan. Nevertheless, Mr Weidenhofer’s evidence is that certain aspects of the proposal fall short of the Plan’s intent. Summarised, they are as follows:

(1) The overall footprint proposed building would exceed the floor area of all buildings in the locality. In his view, the scale is incompatible when viewed against the existing character and when assessed against the terms of Objective 1 for the Zone which, inter alia, has the goal of establishing “minor retailing and service development”.


(2) The proposal has little reference to the scale of existing heritage places and the way in which they are arranged on their land. On the latter issue Mr Weidenhofer said that there are no examples of local heritage places that are arranged such that the principal car park and landscape areas are placed between the road frontages and the building. Among the consequences of the proposed siting is, in his view, the de-emphasis of the intersection as an important feature in the locality.


(3) The proposal, in its design, fails to draw sufficiently on cues from local heritage places. The existing positive elements that do not appear in the design include the (small) scale of each building, and their traditional window proportions, stonework, wall heights, pitched roofs and verandahs.


  1. I have considered Mr Henry’s submissions to the effect that I should take into account the heritage referral advice to the Council from Flightpath (pp247-248, Exhibit R1). The author of the advice was not called to give evidence. It follows that I cannot give it particular weight.

Centre and residential interface impact

  1. Mr Batge, a qualified and experienced planner, appeared in the case for the Council. In his statement of evidence (Exhibit R5), he offers opinions on a range of matters by reference to the relevant provisions above. I do not dismiss his views about the amount and design of car parking, noise emissions, nor the extent to which the proposal complies with the heritage provisions. However, the matters dealt with by him in those topics are covered in one way or another by others having specific expertise and experience in the various fields of enquiry.
  2. Beyond these issues, Mr Batge’s principal concern is the visual impact of the proposed development on the land and buildings immediately to the south. As to the appearance and location of the proposed building, Mr Batge’s views are encapsulated in the following excerpts from p11 of Exhibit R5:
The building with maximum dimensions approximately 40.8 X 44.6m, is larger than other buildings in the locality and the building is sited very close to the boundary of the residential Zone and residential properties at 1.6m. Landscaping is shown in this area but in reality this is very limited space for meaningful landscaping. In order to screen the presence of the building a trellis is to be placed above a fence in the order of 2 to 2.2m in height to produce a structure with a total height of approximately 3.4m.
The location of the building is not consistent with the provisions of the Plan that calls for a separation of the building from the residential zone and for significant perimeter landscaping as in Zone Principle 6 (b) and (c). The 1.6m wide area between the high fence/trellis structure along the southern boundary and the rear (southern) wall of the building is not an arrangement that in my opinion is conducive to significant landscaping along part of the perimeter.
  1. The above views of Mr Batge are set out in his statement in a broader framework of analysis. To be consistent with Objective 1 for the Zone, Mr Batge opined the proposal would need to constitute a “minor retail development”. Furthermore, for consistency with aspects of Council wide Objective 22[8], Mr Batge said that the development of a (neighbourhood) Centre should occur on one side or quadrant of a primary road intersection. In Mr Batge’s view the proposal is in conflict with both provisions. In the former case, the consequence (of a large rather than minor retail development) is to limit to an unacceptable extent the area available to provide the desired landscape screening between the proposed building and the allotments and dwellings in the adjoining Residential Zone. In the latter, the thrust of the Plan to ensure orderly traffic and pedestrian movements in and around an important intersection would be disregarded.

Assessment

  1. The objectives and principles above amount to a planning scheme that involves a complex interplay of town planning guidelines that apply, in some cases, over a wide area of the Council. In such circumstances there are dangers in misconstruing, and thus incorrectly applying, its policy intent by assessing the proposal against the plethora of detailed guidelines without having first determined the strategic intent of the relevant provisions or resolving the evident inconsistencies. Equally, it would be in error to apply the relevant provision in the appropriate and flexible way, but detached from the dictum “that a plainly applicable principle should only be departed from for good reason.”[9]
  2. As I read the Plan, its general thrust as it applies to development on the land is to facilitate “minor retail and service development” in such a manner as to adequately satisfy the guidelines that:

(a) seek to minimise the effect of noise on the land to the south;


(b) specify car parking rates (or, in the case of a deficiency, satisfy clearly expressed alternative arrangements);


(c) call for the safe and convenient movement of traffic on the land;


(d) call for significant landscaping to be placed on the perimeter of the land and within the car park and generally urge visual compatibility with the adjoining Residential Zone; and


(e) call for the scale, siting and detailed design of new development to be compatible with LHPs and CIs in the Policy Area by adopting therefrom appropriate design cues.


I hasten to add here that I have not overlooked the provisions of Principle 128. In the context of this appeal it is a curious provision given the fact that the Zone in its entirety straddles the intersection and North Terrace. In my opinion, the evidence from the traffic engineers and the configuration of the Zone would not justify Principle 128 being given full force or effect.

  1. Although there can be no valid objection to the use of the land for retail development per se, the evidence of Mr Batge and to some extent the opinions of Mr Weidenhofer, raises this question: does the proposal constitute “minor retail development”? On the face of it, the Plan offers little assistance in the resolution of this issue. The DCS for Littlehampton speaks of the township’s historical role as a “minor service centre for a rural hinterland” and foreshadows (under the heading Patterns of Development) the Policy Area offering inter alia, “local centre uses which are complimentary to existing historical development in their design, style and siting”. On its face, the Plan’s intention for a centre having the capacity to service a rural hinterland (its historic role) yet restricted to a local centre function (its contemporary role) may be at odds.
  2. Neither the evidence of Mr Batge and Mr Weidenhofer nor other provisions of the Plan enables the above question to be answered with any confidence. Nevertheless, Mr Batge’s approach expressed on pp10 and 11 of Exhibit R5 is a reminder of the interplay between many of the relevant provisions. That is to say, to the extent that the physical size and scale of a retail development[10] is a consideration when determining whether the proposal satisfies Zone Objective 1, the expressed purpose of that provision (being to limit the land to use by “minor” retail development) would be entirely consistent with the intent of the Plan to reduce to an acceptable extent its impact on – as is this case – the adjoining residential areas.
  3. On the issue of noise emissions, the terms of Council wide Principle 130 and Zone Objective 3 and Principles 3 and 6(a) are the most relevant. The evidence supports a conclusion that the proposed development would effectively satisfy Principle 130[11]. However that degree of compliance is not without consequence or qualification. It would achieve adequate compliance only by the construction of a 2.4m high noise attenuation fence along the residential boundary and, in addition, on the assumption that the configuration, type and noise emission characteristics of the refrigeration units on the delivery vehicles and their stated frequency of deliveries remains unchanged.
  4. Whether adequate compliance with Principle 130 is sufficient to satisfy the Plan’s intention in Principle 6 to “minimise the impacts [from noise]” on residents in the adjoining zone is an issue for consideration. For the reasons that follow it is relevant in the circumstances to consider the EPNP. In my considered opinion, when the evidence of both acoustic experts is carefully considered, it is reasonable to conclude that some of the factors that render the proposal marginally in excess of the maximum noise level expressed in Principle 130 are problematic to the extent that there is a real risk of the proposal on occasions being found in breach of the penalised noise goals of the EPNP[12]. I acknowledge that the EPNP is an instrument that establishes, inter alia, noise goals to satisfy the general environmental duty under s 25 of the Environment Protection Act 1993. Nevertheless, because the relevant noise goal is less than the expressed guideline in the Plan there is a large measure of commonsense in the following submissions of Mr Psaltis:
Without a 2.9m fence, an aggrieved neighbour, or the Environment Protection Authority, may take enforcement action under the Environment Protection Act 1993 to bring about compliance with the Noise Policy. The Council submits that it is inherently undesirable, and contrary to the spirit and intent of PDC 3 and 6 in the NCe Zone, to allow the introduction of a new noise source in circumstances where the possibility of enforcement action is left open, and where “discretionary factors” would need to be invoked to assist in determining whether remedial action is warranted.
In so far as the discretionary factors in the Noise Policy are relevant in the exercise of the Court’s planning judgment, an important factor is the frequency with which the noise goals may be exceeded.
While the frequency of refrigerated deliveries to the site from the IGA warehouse is likely to be in the order of 1 or 2 per week, the facility will also receive deliveries in refrigerated trucks from other suppliers e.g. milk, smallgoods, fruit and vegetables etc. The Appellant has led no evidence about the likely frequency of such deliveries, but they could occur more frequently. In the circumstances, without a 2.9m fence, any approval would need to be subject to a limitation on the frequency of refrigerated deliveries to the site. [Footnotes omitted].
  1. When addressing the above question, I have not overlooked Mr Turner’s evidence and, in particular, his reference to the WHO guidelines and the opinions expressed in Exhibit A6. I gain the impression from his evidence that the noise emissions from the delivery trucks, given the acoustic fence, is at the margins of having an adverse impact (transcript p89). In my considered opinion his evidence and that of Mr Maddern and the evident proximity of the proposal to the southern boundary supports a conservative approach to the assessment against provisions directed at protecting the amenity of residential land immediately adjacent. Having regard to all that has been put before me relevant to that question, I have reached the conclusion that the intent and purpose of Principle 6 would not be achieved where unqualified compliance with recognised noise emission standards is dependent on extraordinary physical barriers being put in place (2.9m high acoustic fence) and considerable reliance being placed on the type and height of refrigeration units on the delivery vehicles and the frequency of deliveries remaining unchanged.
  2. I turn now to the issue of the parking of customer vehicles and the manoeuvring of delivery vehicles. As to the former, I am not persuaded by the evidence of the traffic engineering experts that the proposal should be assessed against Principle 141 as if the car parking rate therein should be read as 5.5 spaces per 100m² of net lettable floor area. They each opined that since a mall is not occupied by retail services, its area should be excluded from consideration.
  3. That approach has little to support it. I acknowledge that it may be common practice of the experts to proceed in that way. However, a perusal of other development plans suggests to me that planning schemes expressly differentiate the basis upon which car parking assessments are undertaken. While many development plans for metropolitan / near metropolitan Councils base the car parking rate for shopping centres on “total floor area”, some utilise “gross leasable floor area” and “lettable area” as the basis while others rely on qualitative provisions. The number of car parking spaces for each 100m² of the specified floor area also varies.
  4. In my considered opinion, the Plan should be taken on its face. The “total floor area” of a building finds explicit expression in the Development Regulations 1993. If the author of the Plan for the Council intended the basis of assessment to be net lettable area it could have so specified just as other planning authorities have. Taking this approach is not without foundation in town planning practice. As I canvassed with the traffic experts, it is conceivable that the authors of the Plan, in establishing the rate and the basis upon which it is applied, did so to guard against or cater for the possibility of the demand for parking being elevated by the commonplace practice of introducing, after construction, small retail tenancies in public mall areas of a shopping centre.
  5. The total floor area (“TFA”) of the proposed building is about 1,560m². When the rate of 5.5 spaces per 100m² TFA is applied, 86 car parking spaces would be expected. At best this amounts to a deficiency of 15 spaces (86 required – 71 provided). The question then is: are there sound reasons for departing from (clearly expressed) Principle 141 by such an extent? Having considered all that has been put before me on that question, I have concluded that the answer is “No” for the following reasons. First, the variance from the principle is neither trifling nor minor and, having regard to Mr Siow’s evidence about car park No.9 and the conflict between car park No.47 and the refuse bin, there is good reason to conclude that the deficiency is greater. Secondly, for the reasons expressed by Mr Siow, the proposal does not satisfactorily resolve the deficiency in the manner sought by Principle 142. The fact that the proposal is immediately adjacent to and on a road that serves a residential area, in my view, elevates the weight that should be afforded to this principle. Last, while I accept that full compliance with car parking guidelines is not always necessary, it would not be a sound town planning practice to adopt for the proposed use as Ms Mellen did, car parking rates for a range of other centres in the absence of a comprehensive demand analysis relevant to the proposal.
  6. The above conclusions are reinforced by the presence in the proposal of other factors that bring into question the adequacy of the car parking arrangements. For delivery vehicles to properly manoeuvre into the loading bay, the proposal relies, on an ongoing basis, on the effective implementation of a parking ban (for a particular period of the day) on several spaces near the southern boundary. If that fails or, on the evidence of Ms Mellen, if deliveries are after 11am, large delivery vehicles cannot manoeuvre entirely within the land in accordance with Principle 138. Furthermore to avoid conflict between large delivery vehicles and perimeter landscaping, some of the proposed trees will need to be either restricted in size or regularly lopped.
  7. The next issue for consideration is whether the proposal adequately satisfies the provisions of the Plan that directs there be a compatible relationship between development in the Zone and residential land (Zone Objective 3 and Principle 6). At the outset it must be said that, in planning terms, where two zones that have incompatible objectives adjoin, it would be unreasonable to expect that the amenity consequences at the boundary would be neutral. That is why the Plan, in its use of the expression in Principle 6 to “minimise” the impacts, requires the proposal to reduce the impacts to an acceptable level by providing, inter alia, “visual relief by way of significant landscaping on the perimeter of the commercial site and within vehicle parking areas”.
  8. On this issue I am persuaded by the evidence of Mr Batge summarised at para 57 above. In my planning judgment, the following would not constitute a basis for adequate compliance with Principle 6 and Council wide Principle 127.

(1) the construction of an unscreened 2.4m high fence (for compliance with Principle 130) immediately beside the front verandah of the dwelling to the south;


(2) the construction of a 2.4m-3.3m high fence and lattice screen / trellis to conceal the long (38m) rear wall of the building positioned about 1.6m from the boundary;


(3) the provision of six trees adjacent the car parks next to the southern boundary and adjacent a retaining wall and fence the height of which (when measured from the driveway) will reach 4.1m; and


(4) for the most part, the provision of a perimeter landscape strip 0.7m wide (including retaining plinths).


  1. It is for these reasons I have concluded that the proposal fails to adequately satisfy the provisions of the Plan that are directed towards the protection of acoustic and visual amenity of land and houses in the adjoining residential zone, the provision of adequate car parking, and the proper and safe manoeuvring of delivery vehicles. In my considered opinion, the proposal should be rejected and the appeal dismissed on those grounds.
  2. However, I have not cast aside the considerable body of evidence and the lengthy submissions about the extent to which the proposal satisfies the provisions that, generally stated, call for compatibility between new development and the existing heritage character. Leaving aside the question of physical size and scale (a major contributory factor to the inability to satisfy the provisions of the Plan), the departures from the heritage character identified by Mr Weidenhofer would not be sufficient to reject the proposal. The language of the Plan, the presence of inconsistencies within some of its provisions and the disparate character of the relevant heritage items in the locality leave a considerable scope for discretion when applying the relevant provisions. In any event, many of the departures in architectural detail, as Mr Weidenhofer said, could be remedied by simple design amendments.
  3. The appeal is dismissed. The decision of the Council to refuse development plan consent is confirmed. There will be an order to that effect.

[1] Princes Highway is otherwise known in the Plan as North Terrace.

[2] The Council takes no issue with the removal of the tree.

[3] The decibel measures are set out such that the first measure is the desired night-time maximum emission and the latter is the desired day-time emission. The experts accepted that the measures are expressed as “equivalent” or average emissions when measured over a 15 minute period.

[4] Delivery vehicles specifically, vehicle movement generally, refuse collection and air conditioning / ventilation plant for the building.

[5] This has the effect of either lowering the threshold to 50dBALeq or inflating the predicted noise emissions by an equivalent amount.

[6] By virtue, of Clause 19 of the EPNP, compliance with noise goals (with penalty), would satisfy the general environmental duty under s25 of the Environment Protection Act 1993.

[7] Schedule 1 of the Development Regulations 1993 defines total floor area of a building or roofed area to mean “the sum of the superficies of horizontal sections thereof made at the level of each floor, inclusive of all roofed areas and of the external walls and of such portions of any party walls as belong to the building”.

[8] The intent and purpose of Objective 22 finds more detailed expression in Council wide Principle 128 above.

[9] Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356.

[10] Here I make a distinction between the physical size and scale from other factors that often characterise the role of a centre such as its market area or area of service influence, range of goods and services and employment capacity.

[11] In the absence of any provision in the Plan to the contrary, I accept that noise level guidelines in Principle 130 are not intended to be the subject of noise penalty.

[12] I understand the evidence of both acoustic experts to be that the relevant goal of 57dBA would in the circumstances be penalised by 5dBA.

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