DE POI v CITY OF NORWOOD, PAYNEHAM & ST PETERS [2010] SAERDC 5 (22 January 2010)

Last Updated: 28 January 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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DE POI v CITY OF NORWOOD, PAYNEHAM & ST PETERS

[2010] SAERDC 5

Judgment of Commissioner Green

22 January 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - variation application to approved fence on a corner site, "as built" sought to be approved - Residential Historic (Conservation) Zone and The Avenues Policy Area - historic character of locality, varied front fencing character - fencing style, scale, detailed design, compatibility, streetscape character and visual amenity, and comparison with approved fence, all considered - mixed expert opinion - scale, height, certain design details not acceptable and would negatively affect heritage streetscape character and visual amenity. Appeal dismissed - decision of the Council to refuse the proposal upheld.

Development Act 1993; Development Regulations 2008, referred to.

Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321, 324, considered.

DE POI v CITY OF NORWOOD, PAYNEHAM & ST PETERS
[2010] SAERDC 5

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter was triggered by the Section 84 Notice issued by the Council alleging that the front wall constructed was not in accordance with approved plans and requiring that it be demolished. This applicant appeal is against the merits decision of the Council to refuse to grant Development Plan Consent for Development Application No. 155/926/2008, which was for a variation to the approved fence in Development Application No. 155/1133/2005, “as built”, at 23 Harrow Road, corner Second Avenue, St Peters, located in the Residential Historic (Conservation) Zone (RH(C)Z hereafter) and The Avenues Policy Avenue (TAPA hereafter).
2. The refusal reasons cited by the Council were:

(1) The fence is of a bulk that is inappropriate and not in accordance with Principle of Development Control 9 of The Avenues Policy Area. The fence is not appropriate to the style of dwelling.
Having regard to Principle of Development Control 9 of The Avenues Policy Area, it has been determined that the bulk and mass of the fence structure is excessive and results in an overall form that is out of scale with the dwelling on the land and not a fence sought in the Desired Future Character statement in the Zone and Policy Area and is contrary to the intentions of Principles 1, 13 and 14 of the Residential Historic (Conservation) Zone. This is further reinforced by City Wide Principles of Development Control 23, 30, and 34.
Accordingly the Application does not warrant Development Plan Consent and is refused as the proposed fence is considered to be seriously at variance with the following provisions of the Development Plan:
∙ City Wide Principle of Development Control 23
∙ City Wide Principle of Development Control 30
∙ City Wide Principle of Control 34
∙ Desired Character Statement of the Residential Historic (Conservation) Zone (fencing)
∙ Objective 5 of the Residential Historic (Conservation) Zone
∙ Principle of Development Control 1 of the Residential Historic (Conservation) Zone
∙ Principle of Development Control 13 of the Residential Historic (Conservation) Zone
∙ Principle of Development Control 14 of the Residential Historic (Conservation) Zone
∙ The Desired Character Statement of The Avenues Policy Area
∙ Objective 1 of The Avenues Policy Area
∙ Principles of Development Control 1 & 9 of The Avenues Policy Area

3. The key issues in this matter for assessment and consideration are:

1. Fencing style;

2. Fencing scale;

3. Fencing detailed design;

4. Compatibility;

5. Streetscape/visual amenity; and

6. Comparison with approved fence.

4. The Court viewed the subject land and the locality, in the presence of the parties, on Tuesday, 24 November 2009. Evidence presented to the Court, to which regard is given, comprised for the appellant, Mr B Harry, an experienced consultant heritage architect and adviser (refer Exhibit A2); and for the respondent Council, Mr D Brown, also an experienced consultant heritage architect and adviser (refer Exhibit R3) and Mr B Burman, an experienced consultant town planner (refer Exhibit R2). Closing submissions were made to the Court in writing, by agreement of the representatives of both parties.

The Subject Land

5. The subject land is a relatively large, near rectangular corner allotment with a frontage of some 24.4 metres to Harrow Road, a frontage and depth of some 71.63 metres to Second Avenue, and with a site area of approximately 1748 square metres. Erected upon it is a substantial dwelling established with its principal frontage to Harrow Road. It is a large single storey, late 19th Century Italianate villa identified as a Contributory Place in the relevant Development Plan (Table NPSP/7).
6. The subject land has a slope downwards and diagonally from north-east to south-west falling in the order of 0 .58 metre and along the frontages in the order of 0.6 metre and 0.4 metre along Second Avenue and Harrow Road respectively. The subject land can be seen in photos in Exhibits R2 and R3.
7. Erected upon the land is the fence the subject of the appeal and for which consent is now sought.

The Development Proposal

8. The proposal is for a variation to approved plans for a boundary fence/wall to both Harrow Road and Second Avenue, and as contained in the amended plans marked Exhibit A1, intended, though not quite accurately, to depict the fence “as built”. In general, and as summarised by Mr Harry:

The fence as constructed varied from the approved development in respect to its height and other dimensions, and was stepped to account for the fact that its site was not flat, but gently sloping. The fence also incorporated less piers, and more solid full height walling.

9. Mr Harry went on to further summarise:

The design of the proposed fence is contemporary, incorporating traditional design references such as banded piers, emphasised plinths, and panels of open iron palisading. The fence piers vary in height from 1.95 metres above footpath level at its eastern end in Second Avenue to 2.43 metres above footpath level at its northern end in Harrow Road.
The proposed construction materials are rendered masonry (concrete block) pillars and plinths, with quoining to piers, all painted finish, with open iron palisade panels to the front and returning approximately 12 metres along the Second Avenue side. The iron panels will be fabricated from vertical 50 x 10 mm flat bars at 85 mm spacing supported by horizontal 20 mm diameter rods near the top and bottom of the flat bars and at the centre line, and will be paint/powder coat finished.
The proposed fence piers are thicker (600 mm x 600 mm) than originally proposed (480 mm x 480 mm) and higher – varying 1950 mm to 2430 mm (as a consequence of the sloping boundary levels), compared to 1900 mm generally as originally proposed. An additional point of difference is the plinth height – now varying from approximately 250 mm to 1300 mm in lieu of a constant plinth height of 480 mm as previously proposed.
Overall, the style and appearance of the proposed fence remains similar to the approved fence design, but is more robust in its form and scale.

The Locality

10. The definition of the locality for the purposes of interpreting and understanding certain Development Plan criteria comprises that part of the area surrounding the subject land with a tangible influence on it and that the specific proposal affects, to a notable degree, and in this matter it is to be based on visual impacts and streetscape character perceptions.
11. I note that Mr Harry adopted a locality that included:

... Harrow Road between First and Third Avenue intersections and Second Avenue, toward Stephen Terrace to a distance of approximately 100 metres beyond the subject site ...

and it is similar though a little more contained than that of Mr Burman.

12. As described by Mr Harry:

... in the immediate environs of the proposed development, dwellings are predominantly from the 1880’s period of subdivision and development. Most are single storey Italianate villas constructed of bluestone or sandstone with steeply pitched, corrugated iron roofs and caste iron ornamented verandah fronts, that are identified in the Development Plan as contributing to the historic character of the Policy Area and the wider H(C)Z.

Mr Harry noted only one State Heritage Place in the vicinity at 6 Second Avenue and that there were no Local Heritage Places nearby.

13. Mr Burman undertook an extensive study with detailed analysis of fencing in his locality, a slightly broader area than that of Mr Harry as noted above, and he found that:

In summary, just over half of the existing front fencing within the locality consists of “heritage style” fencing (50.8%). Masonry and iron fencing is the most prominent form of “heritage style” fencing, representing 27.9% of all fencing within the locality. Brush fencing is the other prominent fencing style, also representing 27.9% of all front fencing within the locality.
Of all the fences within my locality, I have identified only four (6.6% of all front fencing) which exceed 2.0 metres in height.

14. These were referred to at 6, 27 and 27A Harrow Road, together with the side wall of 29 Harrow Road fronting Third Avenue.
15. Mr Burman also summarised:

... the locality is a pleasant residential area. Well maintained street tree lined streets, fencing, front landscaped yards and “character” dwellings form a dominant element within the locality.

16. There were many photos of development, including fencing in the locality, particularly within Exhibits R2 and R3.

The Relevant Development Plan Provisions

17. I have considered the provisions referred to by the witnesses and in the submissions of the parties and find the following provisions in the relevant Development Plan, Norwood Payneham and St Peters (City) consolidated version 13 December 2007, to be those particularly relevant to the key issues in focus:

COUNCIL WIDE (CW hereafter)
Objective: 84; and
Principles of Development Control: 23, 28, 30, 190, 191 and 192.

RESIDENTIAL HISTORIC (CONSERVATION) ZONE (RH(C)Z hereafter)
Statement of Historic Significance
Desired Character Statement - paras 1-5
Objectives: 1, 3, 5 and 6; and
Principles of Development Control: 1, 2, 5, 13,14, 26 and 37.

THE AVENUES POLICY AREA (TAPA hereafter)
Desired Character Statement – para 1 sentence 2, paras 4 and 7
Objective: 1; and
Principles of Development Control: 1 and 9.
TABLE NPSP/4 and 7

Processing

18. The Council categorised the proposal as a Category 1 development, no public notice was given and no representations were received. In addition, no referrals were required to any government agencies.

Approach

19. 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 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.
20. In terms of s 35(5) and the provisions of the relevant Development Plan, this proposal is for consideration on its merits against the Development Plan provisions 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 RH(C)Z and TAPA, 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 as a whole sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.
21. The fact that the proposed development has already been constructed is, based on the approach in Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321 and 324, neither to the advantage nor disadvantage of the appellant, though its partial construction clearly assists assessing the potential impacts on amenity and character and minimises the need to estimate or visualise these.

Planning Assessment

22. Important guidelines in the Development Plan from the policy area, the zone and Council wide sections dealing with heritage conservation, streetscapes, character and visual amenity are set out below, and these inform and guide the assessment of the key issues previously outlined. They are:

COUNCIL WIDE
...
PRINCILES OF DEVELOPMENT CONTROL
...
23 Building and structures should have a visual bulk and architectural scale consistent with structures on adjoining or nearby land and should not visually dominate surrounding spaces, unless the zone or policy area objectives or principles of development control provide otherwise.
...
28 New buildings should complement the urban context of existing buildings on adjoining and nearby land in terms of:
(a) maintenance of existing vertical and horizontal building alignments;
(b) architectural style, building shape and the use of common architectural elements and features; and
(c) consistent colours, materials and finishes.
...
Objective 84: Development which conserves and reinforces the historic integrity of the Council area and is compatible with the desired character of the appropriate zone and policy area.
...
PRINCIPLES OF DEVELOPMENT CONTROL
...
190 Fencing and gates to the front of the building alignment and along the front street boundary (including any secondary street frontage) and returning along the side boundaries to the alignment of the main face of the principal building on the site should:
(a) be consistent with the character, style and height of the related building and the character of the zone and policy area generally;
(b) incorporate materials compatible with the period and style of the place and any existing fencing identified as an element of heritage value;
(c) comprise of materials compatible with traditional fencing materials such as low timber pickets, low pier and plinth masonry, stone, wrought iron and masonry, but should generally not include metal sheeting;
(d) be of a height that complements any existing fencing identified as an element of heritage value or otherwise does not compromise existing views of a heritage place from the primary street frontage;
(e) not include a solid masonry fence of a height greater than 1.2 metres on the primary street frontage (including the secondary street frontage) other than where it is required to be consistent with fencing of identified heritage value on the development site or where the heritage place is located on a main road; and
(f) be no more than 2 metres in height for rear boundary and side boundary fencing behind the alignment of the dwelling.
191 On corner sites:
(a) the front fence should return along the secondary street frontage, at the same height, up to the alignment of the main face of the building and should include a corner cut off; and
(b) the remaining rear section of a side fence on a secondary street frontage should be constructed of traditional materials such as brick, rendered masonry and timber and should not be higher than 2 metres above natural ground level.
192 The use of solid front fences and walls along an arterial road or collector road for noise attenuation purposes, should not exceed 2 metres in height and there should be no sections of greater than 10 metres in length without articulation or detailing and a strip of landscaping on the road side of the fence to provide visual interest.
...
RESIDENTIAL HISTORIC (CONSERVATION) ZONE
DESIRED CHARACTER STATEMENT

...

Infill development will not occur through the demolition of historic buildings or other features that currently reinforce local historic character, and will display a design approach that shows an awareness of historic context.
Development will preserve and enhance the historic character and ambience of localities by providing for a range of high-quality residential accommodation which reinforces the historic character and residential amenity of the relevant policy area.
New buildings and additions to buildings within this zone will reinforce the existing streetscape and historic building stock. ...
New development will complement and reinforce the traditional colours and materials such as stone, brick and rendered masonry. It will be set in a sympathetic landscaped setting and will emulate the general scale and form of traditional building elements such as fences, verandahs and hipped and gabled roofs, instead of attempting to reproduce the finer architectural detail of the historic building stock.
...
Fencing will complement the design of the dwelling and will be used to link the new dwelling into the streetscape. High solid fencing was not characteristic of the historic patterns of development in these areas. Preference will be given to low fencing rather than high solid masonry walls, as quite often these do not contribute to the historic streetscape character and in most cases obstruct views.
...
OBJECTIVES
...
Objective 5: Development that is sympathetic and compatible with the heritage value and historic character of the zone, but is also subordinate to the local historic character in terms of streetscape impact.
...
PRINCIPLES OF DEVELOPMENT CONTROL
...
2 Development should preserve, enhance and reinforce the existing streetscape appeal of the relevant policy area.
...
5 Additions to a place identified to contribute to the historic character of the zone, should be to the rear or side of the existing building and be sympathetic to its scale, form, setting and external materials.
...
14 The detail and general character of development should complement the identified heritage values of the zone and the policy area in which it is located, as well as the specifically identified heritage places and contributory items listed in Tables NPSP/5, 6 and 7.
...
16 Development of a new building or building addition should demonstrate a compatible visual relationship with the buildings that contribute to the historic character of the relevant policy area through consideration of the following:
(a) bulk and scale;
(b) width of site frontage, front and side boundary setback patterns, wall height and window placement;
(c) the proportions (vertical and horizontal) of additions visible from the street that complement the existing building façade and other elevations facing a public road;
(d) the form and level of visual interest present in a building (as determined by the height of eaves, the length and size of unbroken walling, treatment of openings and depths of reveals, roof form and pitch, external colour and texture of materials used, as well as detailing, landscaping and fencing); and
(e) design elements such as verandahs, balconies and eaves where appropriate.
...
26 Development within the Residential Historic (Conservation) Zone should be carried out, where applicable, in accordance with the Design Guidelines for Heritage Places and Development in Historic (Conservation) Zones contained in Table NPSP/4. [Particularly Table NPSP/4 clause 2.4]
THE AVENUES POLICY AREA
DESIRED CHARACTER STATEMENT

...

It is characterised by the regular pattern of large allotments fronting wide, tree-lined avenues with rear service lanes (in St Peters) and the consistent styles of predominantly single-storey, detached, late Victorian Italianate villas of reasonably substantial proportions set in extensive gardens with imposing front boundary fences.
...
Development in this Policy Area will conserve and enhance the historic streetscape character created by the regularity of the avenues and the development patterns that have formed around them. Old and new development will be combined in a way that shows an understanding of historic design patterns, avoids poor imitation and improves the overall visual amenity of streetscapes.
...
The front boundaries will continue to be defined by fencing that is compatible with the period and style of the dwelling. Solid high front fences such as brush or masonry are generally not sympathetic to the character of the streetscape and will be avoided in favour of lower, more open fencing which allows an appreciation of the detailing of the dwelling, such as brick and stone plinths with cast iron railings and a cast iron gate, for dwellings of the Victorian period, and timber picket and paling or woven crimped wire, for Edwardian and inter-war dwellings. Where dwellings on wide allotments have associated private side gardens, brush panels or solid masonry fencing can be successfully used to screen sections of the garden but will not be continued across the full length of the primary street frontage. Flexibility for fencing types may be considered for properties located along roads carrying high traffic volumes, such as Stephen Terrace, Harrow Road and Lambert Road. Side and rear fences will be erected in traditional materials, such as timber, corrugated iron or well detailed masonry. Side fencing along street corners will continue the detailing of the front fence to the house alignment, solid fencing beyond this point will be erected in traditional materials.
...
OBJECTIVE
Objective 1: Development which enhances the historic character of The Avenues Policy Area.
PRINCIPLES OF DEVELOPMENT CONTROL
1 Development should not be undertaken unless it is consistent with the desired character for The Avenues Policy Area.
...
9 Fencing along the front street boundary (including any secondary street frontage up to the alignment of the main face of the dwelling) should maintain the scale of existing historic development and should:
(a) not detract from the character or restrict the visibility of the building;
(b) not exceed 1.2 metres in height if masonry or a maximum of 1.5 metres in height if wrought iron, brush, timber and or wire or woven mesh, with masonry pillars able to be constructed up to a height of 2 metres; and
(c) utilise original design and materials such as:
(i) timber picket, timber dowelling, masonry and cast iron palisade, or corrugated iron or mini orb within timber framing for cottages, villas and other dwellings built during the Victorian period; or
(ii) timber picket, timber paling, woven crimped wire, or corrugated iron or mini orb within timber framing for Edwardian dwellings; or
(iii) timber paling, wire mesh and timber or tube framing, woven crimped wire, or masonry with galvanised steel ribbon for Bungalows, Tudors and other dwellings built between the wars.

1. Fencing Style

23. The Development Plan guidelines seek fencing that is compatible and complementary to the period and the style of the dwelling on the site, and to conserve and enhance the historic streetscape character.
24. The general style proposed for the fence is reasonably typical for the Victorian style dwelling on-site and for the locality (generally matching some 28% of similar fences in the locality on the analysis of Mr Burman), and is supported by the Design Guidelines (Table NPSP/4), clause 2.4 Fences and Gates.
25. No umbrage was taken to the style per se by the various experts, although that was not so with the detail design features/dimensions and the like (refer below). Some elements of the fence are a contemporary interpretation of the traditional rendered masonry pillar and metal fence (for example, the palisade spears), whilst others are of a more replica nature (for example, the pillars, capping and plinths). The overall composition has a number of aesthetic and heritage compatibility/consistency shortcomings detailed later.

2. Fencing Scale

26. The key Development Plan guidelines envisage:
    
    • Scale consistent with structures nearby and not visually dominating surrounding spaces – reasonable in comparison to the dwelling on-site but contrasts dramatically with the low open front fence adjoining to the north (25 Harrow Road) – refer photo 11 of Exhibit R2; and to an extent with the front fences at 2 and 4 Second Avenue (length, height and proportions);
      
    • Consistent height with that of related buildings and character of the zone and policy area generally – acceptable relative to the height of the dwelling on-site; but not so with fencing generally in RH(C)Z, TAPA and locality;
    • Same height on return fence (corner site), provision of corner cut-offs, and return back to the main building face and thereafter, not more than 2 metres above natural ground level – the proposed fence height on the primary and secondary frontages are relatively consistent, but there is no corner cut-off provided and the third solid panel to Second Avenue, east of the Harrow Road corner, should be removed and converted to palisade iron work to open the view to the dwelling and to provide adequate exposure and visibility of it; in addition the return front fence to Second Avenue exceeds 2 metres for 11 to 12 metres in length and with all pillar caps remaining close to or just above 2 metres;
    • Solid walls/fences not to exceed 2 metres – exceeded in many places and up to 2.43 metres in the north-western corner;
    • Emulation of the scale of traditional fences – not achieved being generally greater and more dominant than traditional fences in the locality;
    • High fencing not characteristic and not preferred over low, open fences – proposal is for a non-preferred fencing type, particularly in terms of height;
    • Guidelines in Table NPSP/4 seek relatively low (and open) fencing, with the greatest height reference of 1.65 metres – proposal exceeds the guideline height of 1300-1650 mm for a masonry/caste iron fencing type;
    • (but) TAPA Desired Character Statement seeks villas set in extensive gardens with “imposing boundary fences”, but avoidance of solid high front fences with flexibility for fencing types on Harrow Road – the proposal avoids solid fencing panels to the Harrow Road primary frontage and for part of the Second Avenue return for at least the first two panels, however removal of the third and conversion to an open palisade fencing would be appropriate having regard to the evidence; regardless, it is an imposing boundary fence but that is not a licence to breach several other guidelines; and
    • Maintenance of the scale of historic development and not to detract from its visibility; not exceed 1.2 metres (masonry), 1.5 metres wrought iron and 2 metres (pillars) – the proposal exceeds the height guides in most respects, however it maintains visibility of the villa if the third return bay to Second Avenue is removed and whilst it is in reasonable scale with the dwelling, it is over-scaled in comparison to historic and most often fencing in the locality.
27. On balance, having regard to the evidence particularly of Mr Brown and to a lesser extent Mr Burman, I assess the proposal to be over-scaled, out of proportion, and not acceptably scaled for the locality and policy area, and breaching a number of the Development Plan guidelines on this issue/element. In addition, whilst it is not historically important, or even desirable, nevertheless the Development Plan specifically seeks a corner cut-off for fencing to street corners, I deduce for the purpose of achieving adequate visibility and safety for all road/footpath users. A corner cut-off is not provided.

3. Fencing Detailed Design

28. I have had careful regard to the relevant provisions quoted above, particularly Principles 28 and 191, together with Table NPSP/4, clause 2.4, as well as the various Desired Character Statements arising from the RH(C)Z and TAPA provisions, and Zone Objective 6 and Principle 26 and TAPA Principle 9.
29. In general, the selected materials and colours of the fencing are acceptable and meet the guidelines and applicability to this site containing an Italianate villa.
30. The aspects of deficiency relate firstly to the detailed design/appearance “as built” of the plinths to each frontage. Rather than being designed and built within a conventional range of some 300-500 mm (and 480 mm as approved), the proposal at 600 mm in part and as built up to 1.1-1.2 metres to Harrow Road and 0.9 metres to Second Avenue, are excessive and introduce a level of jarring and incompatibility with historic fencing design and the character of the locality.
31. Mr Harry accepts that design element on the basis of its relativity to the verandah floor level of the dwelling and I appreciate that reasoning, but nevertheless I consider that it would be desirable to have a greater stepping down to the street corner of the plinth height on Second Avenue and on Harrow Road to the northern site corner, to provide greater visibility to the dwelling and the front garden, and as generally envisaged in the designed guidelines of the Plan.
32. The dominance of the plinth on Harrow Road is exacerbated by the absence of an intervening pillar between the pedestrian gate and the corner pillars, particularly in the 12 metre length to the street corner.
33. The modern style palisade/pickets between the traditional piers were found to be acceptable by the experts, and I do not disagree with that design detail.
34. The pier caps are a minor deficiency in terms of their slope angle being flatter than is traditional.
35. Overall, some detailed design deficiencies are evident, perhaps not fatal alone, and if the fence had not been built, could have been the subject of minor modification improvements.

4. Compatibility of Fence to Heritage Places/Contributory Items

36. Mr Brown made a negative assessment on this issue in terms of the bulk, scale, height and dominance of the fence relative to the heritage character of the building on site or of the streetscapes; and that the fence is not complementary to the contributory item adjacent.
37. Mr Harry’s evidence was well reasoned but placed greater weight on broader whole of zone and whole of policy area guides, qualitative rather than quantitative guides and the variety existing in the whole area, rather than a more localised approach. He offsets the scale and proportions and accepts their level of compatibility on the basis of the larger scale and raised floor and verandah levels of the dwelling adjacent and the sloping frontages and found it to be compatible with other fence types in the locality in a wider street setting.
38. Nevertheless, he acknowledged the fence is:

... robust in scale and detailing with proportions of less refinement than the associated dwelling, and dimensions greater than anticipated by the Development Plan provisions ...

but nevertheless found it to be sufficiently compatible with it.

39. I prefer the evidence and opinion of Mr Brown, though I acknowledge that it is, in part, a subjective assessment and appreciation.

5. Streetscape Character and Visual Amenity

40. The streetscape character of both Harrow Road and Second Avenue and the visual amenity qualities vary quite significantly, evidence by the detailed survey/assessment work of Mr Burman. It is not possible for the proposed fence to complement or be consistent with all of the variances, however it is possible for a fence to be generally consistent and compatible with the overall or predominant features, character and visual amenity established by existing fencing.
41. In this instance, the general style, materials and features of the fence are consistent and compatible with the predominant character and visual amenity elements, though that is not the case with certain design detail such as plinth height, pillar spacing, height and pillar cap detail.
42. Those features provide and leave a jarring, incongruous affect – negatively impacting on the broad streetscape character and visual amenity. Some of these may be capable of relatively simple/easy remedy; others may not, and in toto require a more significant redesign (and certainly rebuild).

6. Comparison with Approved Fence

43. As noted by the experts (albeit with different calculations – measurements for the “as built”/proposed situation), there are many differences between the approved fence (refer Exhibit R1, pp1A-1D) and the “as built”/proposed fence (refer Exhibit A1). A summary of these include (“as built”/proposed first with comparison to approved elements second):
    • Generally greater height (2.43 metres north-west corner – 2.2 metres south-west corner – 1.95 metres south-east corner, compared with 2 metres, 1.9 metres and 1.9 metres in the same respective corners for the approved fence);
    • Pillar/pier height (including cap) and widths greater (2.61 metres north-west corner – 2.42 metres south-west corner, compared to 1.9 metres as approved); and in terms of width, 0.65 metres compared to 0.48 metres;
    • Plinth height greater (1.43 metres north-west corner to 0.96 metres south-west corner, compared with 0.48 metres generally as approved);
    • Fewer pillar/pier numbers to Harrow Road (4 versus 6 approved); but more to Second Avenue (14 versus 13 approved, a desirable variation);
    • Stepping differences (1 step along Second Avenue compared to no steps with respect to the approval but to Harrow Road no steps in each case – the latter a positive and preferred); and
    • Two panel bays open with grill palisade to Second Avenue compared to 1 panel bay open to Second Avenue as approved (a positive and with one more open framed bay preferred to Second Avenue).
44. Hence, in summary, bar the last two items, the “as built”/proposed fence is higher, bigger and more solid than that approved, but the last two items are a preferable outcome, closer to the Development Plan intent, than the ”as built”/proposed fence.
45. Hence, no reliance or additional weight is placed on the approved development design which is a reasonable base that could still (with rebuilding) be implemented, to provide greater support for the “as built”/proposed development under consideration by the Court.

Conclusions

46. I conclude from my assessment of the amended proposal before the Court having regard to the view of the land and the development “as built” (for which approval is sought), that I generally agree with the assessment and conclusions of Messrs Brown and Burman. The proposal is mostly inconsistent, to a greater degree than that approved and which could be implemented, with the Development Plan guidelines, to an extent warranting refusal of the application and dismissal of this appeal.
47. The proposal “as built” has design deficiencies; it is not well proportioned and is a poor, clumsy attempt at an imitation of traditional fencing. Its scale, height, proportions (pillar/piers and plinths as examples), are not acceptable in this historic site, streetscape, TAPA and RH(C)Z contexts. I accept that there is a degree of subjectivity involved in making this assessment but I am supported in that conclusion by the independent expert opinions of Messrs Brown and Burman.
48. I have considered the evidence, including the reasoning of Mr Harry for the appellant, as well as the topography and slope of the land along its frontages, the Development Plan guidelines and all relevant matters and my planning judgment is that the decision of the Council to refuse the variations/amendment application was the correct decision.

Decision

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

ERD File No. 262 of 2009 – Section 84 Enforcement Matter

50. It is obvious from the merits assessment and decision that there are a number of detailed design aspects that would need to be removed/corrected/amended to enable the Court to support and approve the fence. However, it may well be that the parties are able to come to agreement as to the extent to which the fence should be modified, to then warrant the Council’s support. That would enable the terms of the s 84 Notice to be modified to specify and require such amendment and within a particular timeframe, rather than necessarily removal of the whole fence.
51. I allow time for the parties to confer and to endeavour to reach agreement about the notice and draft minutes of order, and I will hear the parties further in that regard on Monday, 22 March 2010 at 10.30am. This matter is adjourned to that date and time.