BLAZON CONSTRUCTION PTY LTD v CITY OF HOLDFAST BAY [2010] SAERDC 7 (1 February 2010)

Last Updated: 4 February 2010

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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BLAZON CONSTRUCTION PTY LTD v CITY OF HOLDFAST BAY

[2010] SAERDC 7

Judgment of Commissioner Mosel

1 February 2010

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for the installation of nine air conditioning units and associated acoustic screens – Residential Zone – consent refused – noise emissions of the air conditioners and the appearance of the air conditioners and associated screens the principal issues – Environment Protection Act 1993 Noise Policy considered – acoustic evidence satisfies the relevant provisions of the Development Plan – screens will increase the apparent bulk of the residential flat building – detriment to the visual amenity considered - when that aspect is weighed against other relevant factors the proposed development satisfies, to an adequate extent, all relevant provisions of the Development Plan – appeal upheld – Development Plan consent granted.

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

Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; Spreyer v City of Glenelg and CAG Pty Ltd & Lefkas Pty Ltd 1994 EDLR 323, considered.

BLAZON CONSTRUCTION PTY LTD v CITY OF HOLDFAST BAY
[2010] SAERDC 7

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal concerns land situated at 3 Barwell Avenue, Seacliff. Upon the subject land are two 2-storey residential flat buildings. The northern most building contains six dwellings. The southern building contains nine dwellings. The appeal is against the decision of the Holdfast Bay Council to refuse development plan consent to an application by the Appellant to install nine air-conditioning units (each with an acoustic screen) on the roof of each of the nine dwellings contained in the latter building.

The Southern Building

2. The character of the southern building (and, in consequence, the proposed position of each air-conditioning unit), its position on the subject land, and the relationship between the subject land and its near neighbours largely determine the principal planning issues in this appeal. Mr Batge, an experienced planner appearing in the case for the Council, characterised the buildings on the subject land as being “of relatively simple cubic form, constructed of tilt-up concrete panels...” In reference to the southern building upon which the air-conditioning units and acoustic screens would be placed, he expressed its character in the following terms:

When viewed from the south being the most relevant aspect in this matter they present as a series of straight walls with small high level windows in a stepped arrangement with a dividing parapet wall between each dwelling that rises approximately 750 to 800 mm above roof level on the eastern side of each wall and approximately 1 metre on the western side where the roof steps down. The roof on each dwelling is a skillion type that slopes downwards towards the southern boundary of the subject land.

The Proposed Development

3. The nine air-conditioning condensing units proposed to be mounted on the (skillion) roof of the southern building and their respective acoustic screens are depicted on Exhibit A1.[1]
4. Each air-conditioning unit would be 800mm long, 320mm deep and about 1000mm high. Each would be mounted about 600mm from the eastern parapet wall and at about 2400mm from the southern wall of the dwelling it serves. The proposed acoustic screen would be as depicted on Exhibit A3. It would be attached to the respective parapet walls 500mm away from the air-conditioning unit it screens.[2]
5. The southern building (and thus each of the dwellings it accommodates) is set back from the southern boundary of the subject land a distance that varies from 3.6m to 4.5m. The proposed acoustic screens would therefore be about 5.5m to 6.4m from the southern boundary. Although the setback distances of the dwellings on the allotments immediately adjoining the southern boundary of the subject land (14-17 Lucy May Drive) vary, I estimate the distance between the nearest wall of each dwelling at the nearest acoustic screen would be between 7m and 10m.

The Development Plan and the Issues

6. The subject land and its neighbours are within the Residential Zone (“the Zone”) in the Council’s Development Plan (“the Plan”). The relevant version of the Plan is dated 10 January 2008. The proposal does not enjoy the exemptions under Schedule 3 of the Development Regulations 2008, that do some air-conditioners and roof-mounted infrastructure. Nevertheless I do not think it is disputed that the installation of an air-conditioning unit is generally regarded as a reasonable expectation, if not a necessity, for a dwelling. To that limited extent, there is no dispute that the proposal as a whole is not inconsistent with the broad policy intent for dwellings in the Zone.
7. However, there are particular provisions of the Plan against which aspects of the proposal are to be assessed. The parties agree that the issue to be resolved involves an assessment against provisions that, broadly speaking, seek to protect the amenity of the occupants of neighbouring dwellings. In turn, that issue devolves into two principal questions. The first is whether the proposal would satisfy the provisions of the Plan that seek to minimise the transmission of sound from air-conditioners to adjacent dwellings. Principles 108 and 111 under the heading “Residential Buildings, Structures and Ancillary Development” speaks directly to the question of noise emissions from service equipment and domestic plant:
   108. External noise intrusion to bedrooms should be minimised by separating or shielding bedrooms from:

(a) active communal recreational areas, parking areas and vehicle access ways;
(b) service equipment areas; and
(c) the windows of adjoining dwellings.
...

111. Air-conditioning units, pool plant, spa baths and other domestic plant should be located or protected by appropriate noise shielding techniques to minimise the transmission of sound to adjacent dwellings and should particularly protect noise sensitive rooms and secluded private open spaces. (Emphasis added).
8. The noise shielding technique in this instance are the acoustic screens each in the form depicted in Exhibit A3.
9. The second issue that falls for consideration is whether the form and appearance of the acoustic screens sufficiently accords with those provisions of the Plan which have the goal of creating an attractive and pleasant visual amenity. The provisions for consideration include the following Council wide provisions which generally act in support of Objective 31 and its commentary:
   74. The appearance of land and buildings should contribute to the desired future character of the relevant Zone or Policy Area, in terms of built form elements such as:

(a) building height;
(b) building mass and proportion;
...
(d) external materials, patterns, textures, colours and decorative elements;
...
(f) roof form and pitch;

78. The visual bulk of buildings adjacent to street frontages and adjoining private open spaces of neighbouring allotments should be reduced through design methods such as:

(a) colour, building materials, detailing and articulation; and
(b) setback upper storey parts of buildings from neighbouring private open space.

94. Setbacks from side and rear boundaries should be progressively increased as height of the building increases to:

(a) not cause unreasonable visual impacts on the amenity of adjoining properties;
...
258 Areas of land and facilities:
(a) for the accommodation of plant, including air conditioning, electrical, telecommunications plant and communication receivers (satellite dishes); and
(b) for the storage and removal of waste materials, should be unobtrusive.

259. The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated.
10. One of the goals of Objective 31 is the promotion of pleasant residential zones. The text supporting this objective says, in part:

Achievement of this objective can be assisted by development that is well designed and which enhances the residential character and amenity of the area into which it is to be sited.

11. The relevant provisions for the Zone that fall for consideration are found within the Desired Future Character Statement (“the DFC”). The most relevant passages are in the following terms:

Building design should be both domestic and contemporary in design and character and create physical and visual relationships between dwellings and their respective sites and localities that support and reinforce the Zone’s essentially suburban character through development that:
(a) is generally of single storey scale in the areas east of Brighton Road, and single to two storey scale in the areas west of Brighton Road, exhibiting typical domestic design forms;
...
(i) incorporates materials and finishes that respond to the character created by the predominant use of brick, stone and rendered finishes, and architectural design and detailing that responds to the forms of fenestration, doorways, windows and eaves;

The Locality

12. For the purposes of the assessment, Mr Batge defined a locality (p 21, Exhibit R2). In my opinion, it is an appropriate area for two principal reasons. First, it includes those dwellings adjacent to the subject land and southern building that are most likely to be affected by the proposal. Secondly, it includes existing development of common character as well as the visual and topographical features relevant to the assessment.
13. The factors within the locality identified by Mr Batge appear at pp 6 and 7 of Exhibit R2. Although I generally concur with his observations, there are other aspects within the locality, as Mr Levinson pointed out, that warrant consideration. From my observations on the view, it appears to me that the presence of roof-mounted evaporative air-conditioning units, roof-mounted solar hot water units and solar panels, above-ground sports-ground lights, and high-voltage electricity infrastructure in the locality are all factors that contribute to the locality’s character and visual amenity.
14. In my opinion, the visual environment is pleasant. Generally speaking, the dwellings are relatively new and well maintained. Some dwellings have been sited to take advantage of their elevated positions. Inevitably, however, the topography of the locality and the orientation and design of some dwellings result in the presentation of direct views from those dwellings (Nos. 14-17 Lucy May Drive) to the roof-tops of the dwellings on the (lower) subject land and the plant, services and infrastructure mounted thereon.

The Evidence

Acoustic

15. Exhibits A2 and R3 are, respectively, the statements of evidence of Mr Turnbull and Mr Maddern. By consent, it was not necessary for Mr Maddern to appear for examination.
16. Mr Turnbull and Mr Maddern undertook calculations to predict the noise levels of the air-conditioners at each of the adjoining dwellings. In the opinion of Mr Maddern (who appeared in the case for the Council), the noise level of the air-conditioners, screened as proposed, would vary between 41.5dB(A) and 43.7dB(A). His predictions assume the presence of the small and compact acoustic screen depicted on Exhibit A1. At the direction of Mr Batge, Mr Maddern also undertook calculations to predict the noise levels at the same locations assuming alternative positions for the air-conditioning units and a different design for the acoustic screens (Table 1, p 5, Exhibit R3).
17. In his statement Mr Maddern made the following observations:

At elevated locations where a substantial proportion of the array of units were potentially exposed, generally many of those to the west were significantly screened by the exposed party walls, and those to the east assisted in noise propagation by the exposed party wall located behind the unit.
Generally, only at elevated locations (such as the first floor north facing window at dwelling B) was the potential noise from more remote air conditioners of potential acoustic significance to a particular assessment position.

18. Mr Turnbull, it appears, took a more conservative approach. He undertook predictions of noise levels of the air-conditioning units that are closest to the adjacent dwellings and the combined noise of all air-conditioners. He factored into his calculations the (larger) acoustic screen in Exhibit A3.
19. The “worst case” scenario occurs when all units are in operation. Mr Turnbull estimates in that case the noise levels would vary from 37dB(A) to 40dB(A).
20. Both experts undertook their assessments having regard to, inter alia, Principles 108 and 111 above and the Environment Protection (Noise) Policy 2007 (“the Noise Policy”). That policy, in short, declares noise from a fixed domestic machine to have adverse amenity impacts where it:

(a) exceeds 52dB(A) between 7am and 10pm; and
(b) exceeds 45dB(A) between 10pm and 7am.

Planning

21. In Mr Batge’s opinion, the acoustic screens would have an unacceptable visual impact on the visual amenity. He laid the foundation for his opinion on some observations about the planning merits of the southern building. In his view, the building “impacts significantly on the amenity...[having]... significantly and negatively changed the outlook and amenity of the dwellings at the northern end of Lucy May Drive.” He made particular reference to the presence on the roof of the southern building “an assortment of vent pipes, TV antennas, vents, satellite dishes and the installed air-conditioners.”
22. It is within that context that Mr Batge, when asked to consider the modified acoustic screen (Exhibit A3), maintained his view that it would add to the visual clutter and thus fail to satisfy, in particular, Objective 31.
23. Mr Batge said that there are superior solutions, the most favoured of which is the construction of a “parapet” type acoustic screen that would extend across the full width of each dwelling. In his opinion, this approach would harmonise with the architecture of the southern building, improve the visual amenity experienced by the rear neighbours, and enhance the appearance of the southern building when viewed from the east and west.

Discussion

24. As to the first of the above questions, the evidence of the expert acoustic engineers appears to me to be clear and unequivocal. That is, for the terms of the Noise Policy to be met, an acoustic shield must be placed in an appropriate position between each of the air-conditioning units and the southern wall of the southern building. Although Mr Maddern was not called to express an opinion on the effectiveness of the acoustic shield upon which Mr Turnbull based his prediction, his calculations and assumptions are generally in support of Mr Turnbull’s conclusions.
25. It is necessary to say at this point that the Noise Policy is for the purpose of implementing the Environment Protection Act 1993. It follows that compliance with the Noise Policy does not necessarily satisfy the provisions of the Plan that are directed toward noise emissions from domestic plant and equipment, such as Principle 111. However, I consider significant in the assessment that the noise levels predicted by Mr Turnbull are well below that which Mr Maddern suggests (by reference to the Noise Policy) would constitute a nuisance.
26. In all, there is no evidence that suggests to me that the proposal violates Principles 108 and 111. In my opinion, all necessary steps have been taken to “minimise the transmission of sound to adjacent dwellings.”
27. I turn now to the second question. At the outset I need to say something about the approach taken by Mr Batge in his assessment. It is very apparent from his statement that he feels compelled to redress, through the proposal, the negative visual impacts of the existing development on the subject land he believes have been imparted on the adjacent dwellings. In my view, that has coloured his opinions and ultimately led to his consideration of an alternative design to achieve a superior visual and architectural outcome.
28. It is well established that such an approach is not open to a planning authority. In the decision of Spreyer v City of Glenelg and CAG Pty Ltd & Lefkas Pty Ltd 1994 EDLR 323 the Court, in respect of the proposal under appeal, said:

In design terms, the proposed development may not be ideal; nor is it likely to be the best achievable development for the subject land having regard to the relevant Objectives for the Zone and Policy Area and the existing development adjacent to the subject land and in the locality. However, the task of this Court is not to redesign a proposal, or refuse a proposed development on the basis that it is not the best possible development for the situation, when it is otherwise in conformity with the relevant provisions of the Development Plan.

29. Nevertheless, there are circumstances where departure from this line of authority might be justified. For example, the plan comprising Exhibit A3 appears to have been hastily prepared and appears to be absent of certain construction details. Here I refer to the manner in which it will be supported and braced. If bracing is required, the appearance of each screen depicted in Exhibit A3 may change. Since its appearance and the question of visual amenity is a central issue, the addition of structural elements may be such as to conflict with relevant provisions. In circumstances where all other aspects of the proposal are found to satisfy the relevant provisions, it is open to the Court to contemplate minor design amendments that may be necessary to bring a proposal into adequate conformity with the provisions that remain in question.
30. When assessed against the provisions relevant to this question, the proposal cannot escape criticism. The acoustic screens would increase the apparent bulk of the southern building and would, from certain vantage points, be viewed as intrusions into far distant views. To that extent, I do not consider that the proposal enhances the visual amenity (Objective 31). However, those considerations are to be weighed against the nature and character of the existing visual environment, the generous setback distances of each screen from the southern wall of each dwelling and the southern boundary (Principle 94 refers), and the features of the proposal (materials and colour) that are complementary to the existing building (Principle 78 and the DFC refers). In all, I consider that the impact on the visual amenity of the acoustic screens is not unreasonable. This conclusion, together with the evidence of Mr Turnbull to the effect that the screens will reduce the noise emissions to a level that is almost inaudible, are factors which weigh in favour of the appellant’s case.
31. By memorandum dated 9 December 2009 I advised the parties, in the above terms, of my preliminary conclusions. That is to say the proposal to install the air-conditioning units and acoustic screens (as depicted in Exhibit A3) would satisfy the relevant provisions to an adequate extent when those provisions are properly weighed and considered in light of all circumstances. My conclusions were “preliminary” because for the reasons above, they are subject to the appellant clarifying the means by which the screens are to be attached and braced.
32. I granted leave to recall Mr Batge in the event that Council found it necessary to adduce evidence on amended plans should they be tendered in response to my comments above.
33. When the hearing resumed on Thursday 28 January 2010, Mr Levinson tendered the details of the screen fixings (Exhibit A4). Ms Harris did not recall Mr Batge.
34. The fixing detail in Exhibit A4 does not call into question the appearance of the proposed screens. That being the case there will be an order granting development plan consent to the proposal detailed in Exhibit A1 as amended by the plan in Exhibit A3 and the screen fixing detail in Exhibit A4.

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[1] The design of the acoustic screens in Exhibit A1 are, for the purposes of the hearing, amended to that depicted in Exhibit A3.

[2] No benefit or detriment flows to either party in this appeal from the fact that the air-conditioning units have been installed without having received planning authorisation: Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321.