HAUGUM v COUNCIL OF ROXBY DOWNS [2010] SAERDC 29 (21 May 2010)

Last Updated: 25 May 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.

HAUGUM v COUNCIL OF ROXBY DOWNS

[2010] SAERDC 29

Judgment of Commissioner Hamnett

21 May 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against Council's refusal to grant Development Plan Consent for a carport - subject land located in Residential Zone - - proposal at odds with character of existing locality and likely to impair the amenity of the locality - issues of precedent and "first intrusion" - decision of Council affirmed. Appeal dismissed.

Development Act 1993, referred to.

HAUGUM v COUNCIL OF ROXBY DOWNS
[2010] SAERDC 29

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal by Geoffrey Jon Haugum (the Appellant) against a decision by the Council of Roxby Downs (the Council) to refuse development plan consent to an application to construct a carport at 25 Pine Crescent, Roxby Downs. The Council refused the application on 5 January 2010. The Appellant was aggrieved by this decision and appealed to this Court.
2. At the hearing the Council was represented by Mr B Allen, of counsel. The Court heard evidence from Mr M Richardson, an experienced and qualified town planner. Mr Haugum conducted his own case and gave sworn evidence. The Court conducted a view of the subject land and its locality prior to the hearing.

The Subject Land

3. The subject land is formally described in Certificate of Title Volume 5965, Folio 197, as Allotment 1483, Deposited Plan 69986 in the area named Roxby Downs, Out of Hundreds(Andamooka). The land is irregularly shaped but has the approximate form of a pentagon. It has a frontage of 23.63 metres to Pine Crescent, a maximum depth of about 60 metres and an overall area of 1258 square metres. A modern detached brick dwelling is situated on the land. There is an existing double garage at the eastern side of the dwelling, set back about six metres from the front boundary of the property. Plans provided as part of the Council’s book of documents (Exhibit R1) show the double garage to be set behind the front face of the dwelling, although it was clear from the view that the garage in fact extends forward of the dwelling face. There is a small area of lawn and a raised garden bed in front of the dwelling. There is also an outdoor living area under a roof to the rear of the double garage and a large shed at the rear of the lot which, according to Mr Haugum, contains a workshop and provides garaging for two cars at present.

The Proposed Development

4. The proposal is to erect a carport six metres long by six metres wide in front of the existing double garage. The carport would have a metal frame and a hipped roof in colour coated steel with prominent gables. The roof form and materials are intended to match those of the dwelling. The maximum height of the carport would be about 3.3 metres. The carport would extend from the garage to a point about two metres from the front property boundary.
5. Mr Haugum explained that his purpose in seeking approval for the carport was primarily to provide additional undercover space for a collection of “classic cars” which he and his father own.

The Locality

6. Mr Richardson identified a locality extending about 100 metres in each direction along Pine Crescent from the subject land. Mr Richardson defined this locality primarily on the basis of the area within which the proposed carport would be visible as an element in the streetscape. A small extension of the locality for about 50 metres along Eremophila Street to the north was also included. Mr Richardson noted that Pine Crescent was typical of the curvilinear street pattern characteristic of Roxby Downs. Travelling from west to east, the road bends towards the south and then back towards the north just west of the subject land, continues to the north as it passes the subject land and three allotments to its east, and then bends back again to head more or less due east.
7. Allotments in Mr Richardson’s locality are between 500 and 700 square metres in area, with slightly irregular shapes and front setbacks because of the curvilinear street pattern. There are also some smaller semi-detached allotments of 400-500 square metres. Immediately to the west of the subject land is a reserve of about 2,500 square metres. The subject land and an adjacent allotment to the north-west, which has a frontage to Eremophila Street, are larger than normal in this locality. Most dwellings in the locality are detached and between 10 and 15 years old, with open carports to the side. There are semi-detached dwellings at 27 Pine Crescent, to the east of the subject land, and at 26 Pine Crescent, to the southwest of the subject land on the other side of the road. These have a shared double carport between each pair of dwellings. Most dwellings include landscaping appropriate to the climate at Roxby Downs with native trees, shrubs and bark mulch. Some also have small areas of lawn.
8. Mr Richardson found the locality overall to be one of moderate to high amenity, with generally well-maintained dwellings set on moderate sized allotments and with appropriately landscaped gardens.
9. Mr Haugum did not attempt to define the locality of the subject land. However, he led the Court on a tour of Roxby Downs, in the course of which he pointed out a number of existing carports built well in front of their associated dwellings. These included carports in Pioneer Drive, Aquila Boulevard, Agonis Road, Alberrie Steet and Irrapatanna Street, the last-named being some 1.5 kilometres away from the subject land. I noted these carports but they were of limited relevance to the matter under consideration because of their distance from the subject land.
10. I accept Mr Richardson’s definition of the relevant locality, and particularly his description of the character of Pine Crescent to the east and west of the subject land. The subject land would be highly visible when travelling along Pine Crescent from east to west. Views from the west would be somewhat more screened by fencing and planting along the western boundary of the land, but the front part of the allotment, the area on which it is proposed to build the carport, would be clearly visible, nevertheless.

Development Plan Provisions

11. The relevant Development Plan is the Development Plan for Roxby Downs (Municipality) as consolidated on 1 November 2007. The subject land is located within the Residential Zone as indicated on Map Rox/10.
12. I regard the following provisions of the Development Plan as most relevant to this matter:

Residential Zone

Objective 1: Safe, pleasant, convenient and distinctive living environments for all residents provided by housing and local community facilities that complement the living environment.

PRINCIPLES OF DEVELOPMENT CONTROL

Form and Density of Residential Development

1. Residential development should comprise a range of housing types and styles to meet the diverse needs of the population.

...

7. The following kinds of development are complying in the Residential Zone, subject to compliance with the following conditions where applicable:
   

(a) buildings and structures externally clad with new or substantially new pre-colour coated or pre-painted metal sheeting, painted zincalume or galvanised iron, brick, concrete block or painted compressed fibre cement;

(b) the conditions prescribed in Table Rox/2:

Detached Dwelling
Residential Flat Building
Row Dwelling

Semi-detached Dwelling

Domestic Outbuilding

Far North Provisions
...

Objective 6: Development which meets adequate standards for public safety, convenience, economy and amenity.

Council Wide Provisions

Principles of Development Control
...
3 Housing and other urban development, including caravan parks, should:

(a) form a compact and continuous entity;
(b) be designed so as to have minimal detrimental impact on the existing environment;
(c) be located so as to achieve economy in the provision of public services; and
(d) create a safe, convenient and pleasant environment in which to live.
...

10. Set-backs from front, side and rear boundaries should be increased as building height increases to:
    

(a) reduce visual impact of buildings from adjoining properties;
(b) reduce overshadowing of adjoining properties;
(c) maintain adequate daylight to dwellings.
...

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

Table Rox/2
...

8. Buildings (excluding any verandah, porch, etc) are set-back a minimum of 6 metres from the primary street frontage and 3 metres from the secondary street frontage.
   

Garages/Carports attached to Dwellings

9. Single garages/carports and double garages/carports attached to the associated dwelling are set-back:
   

(a) not less than 6.5 metres from the street from which the are accessed; and

...

Freestanding garages

10. Free standing garages and carports built in conjunction with the dwelling are:
    

...

(b) Where constructed at the side of the dwelling and facing the front, set-back at least 6.5 metres from the front property boundary and the front wall of the garage or carport finished with materials of the same style or colouring of those of the dwelling;

...

The Evidence

13. Mr Richardson noted that a domestic outbuilding (which included a carport in his opinion) was a complying form of development in the Residential Zone under Principle of Development Control 7, provided that it met the following conditions:

(a) buildings and structures externally clad with new or substantially new pre-colour coated or pre-painted metal sheeting, painted zincalume or galvanised iron, brick, concrete block or painted compressed fibre cement; and
(b) complies with the conditions prescribed in Table Rox/2.

14. Mr Richardson was satisfied that part (a) above was met but not part (b). Clause 8 of Table Rox/2 requires buildings, to be complying, to be set back “a minimum of 6.0 metres from the primary street frontage”. Clauses 9 and 10 which follow require carports, whether freestanding or attached to a dwelling, to be set back at least 6.5 metres from the street. The proposed carport was not a form of complying development, therefore, and needed to be assessed on its merits.
15. Mr Richardson accepted that a carport was an appropriate land use in a residential zone. He did not consider that the proposed development would interfere with the free flow of traffic on adjoining roads and streets or raise any other issues relating to traffic safety or access.
16. Mr Richardson’s principal concerns with the proposed development related to amenity issues resulting from the limited setback distance of the proposed carport from the street. He noted that Council Wide Principle 10 sought increased setbacks as a means of reducing visual impacts of buildings. Mr Richardson observed that, while the proposed carport would be open-sided, it would, by virtue of its size, shape and roof design, present a substantial and imposing built form projecting forward of the existing garage which already extended forward of the main façade of the dwelling. It would also, in his opinion, provide a ‘lop-sided’ character to development on the land. The roof structure already extends further forward on the eastern side of the land while being well set back on the western side. The proposed structure would result in a roof extending a further 6 metres forward on the eastern side, almost to the street. This would be out of character with the pattern of development in the locality where the majority of dwellings have reasonably consistent setbacks and front facades, roughly parallel to the front boundary of allotments. It would also reduce the available space for landscaping between the structure and the street. The overall effect would be clearly at odds, in Mr Richardson’s opinion, with the intent of Council Wide Principle 68 that “the appearance of land and buildings should not impair the amenity of the locality in which they are situated”.
17. Mr Haugum’s case was that the proposed carport was designed, in its roof pitch, materials and colours, to be consistent with the existing dwelling on the subject land. He did not agree that the proposed carport would have any detrimental impact on the amenity of Pine Crescent, nor had it attracted any adverse comment from the 17 or so residents of the surrounding area whom he had consulted. Mr Haugum also emphasised that there were several examples of carports in Roxby Downs which were sited in front of their associated dwellings, with more visual impact, in his opinion, than the proposed development was likely to have.

Discussion

18. Mr Haugum seeks to build a carport to provide additional under-cover space for his vehicles, including a number of classic cars. There is nothing unreasonable about this but Mr Haugum’s aspirations need to be weighed against the broader interests of the community as these are set out in the Development Plan.
19. The only expert evidence provided to the Court was that of Mr Richardson. His principal concerns were that the proposed carport, sited in front of an existing double garage which already protruded beyond the main face of the dwelling, would be at odds with the existing character of the locality and those provisions of the Development Plan which required new development to be appropriately set back from front property boundaries. Mr Richardson noted that the 6.5 metre setbacks specified for carports in Table Rox/2, relating to complying development, were not to be taken as mandatory standards when considering a development proposal on its merits. He also acknowledged that there were no quantitative standards expressed in either the Residential Zone or Council Wide provisions of the Development Plan relating to the setback of carports or other buildings. Nevertheless, he was of the opinion that the proposed development would be at odds with the pattern of setbacks in the locality, especially along Pine Crescent, and would clearly be a highly visible and dominant element in the streetscape. As such, it would be at odds with the intent of the Development Plan and, in particular, with Council Wide Principle 68.
20. I accept Mr Richardson’s evidence and agree with his conclusions. I can quite understand why Mr Haugum feels aggrieved by the existence of other carport structures elsewhere in Roxby Downs which are sited in front of their associated dwellings and where, it seems, less care has been taken to match the carport design to the form, materials and colour of the dwelling. However, it is well-established that inappropriate precedents cannot be called upon to justify development proposals which are at odds with the intent of a development plan. The proposed carport, if approved, would itself represent an undesirable precedent in a locality where the existing pattern of development is one where front garden areas are open and carports and garages are consistently set back to the side of their associated dwellings. Concern about establishing an undesirable precedent through a “first intrusion” of this sort, while it may not generally be a decisive consideration, is a further argument against approving the proposed carport.
    

Decision

21. I have given careful consideration to all relevant provisions of the Development Plan, to the evidence and submissions that I heard, to what I saw on the view and to my own planning assessment of the proposed development. Having done so, I have concluded that the appeal should be dismissed and the decision of the Council upheld.
22. There will be an order accordingly.