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SALANDRA & ANOR v CITY OF WEST TORRENS & BCL INTERNATIONAL P/L [2011] SAERDC 1 (13 January 2011)

Last Updated: 17 January 2011

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.


SALANDRA & ANOR v CITY OF WEST TORRENS & BCL INTERNATIONAL P/L


[2011] SAERDC 1


Judgment of Commissioner Green


13 January 2011


ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Third party appeal against the grant of conditional Development Plan Consent by the Council for a student accommodation facility and use in the Residential Zone and Policy Area 40 of the Council's Development Plan - busy arterial road location adjacent District Centre - nature of use considered, found to be student accommodation - on merit in the zone - location acceptable on land use compatibility basis - residential density; management measures over occupiers, visitors; parking generation and adequacy; building design and appearance considered and found acceptable - amenity impacts (sunlight/day light; overlooking-privacy loss; noise nuisance; security risk and visual amenity) considered - proposal sufficiently in compliance with and not seriously at variance with Development Plan - conditional Development Plan Consent granted - appeal allowed only to incorporate amended plans and varied and additional conditions of consent.

Development Act 1993; Environment Resources and Development Court Act 1993; Development Regulations 2008, referred to.

Whitington & Ors v City of Burnside & Domain Project Development Pty Ltd [2003] SAERDC 13, considered.


SALANDRA & ANOR v CITY OF WEST TORRENS & BCL INTERNATIONAL P/L
[2011] SAERDC 1


THE COURT DELIVERED THE FOLLOWING JUDGMENT:


  1. The City of West Torrens, (the Council hereafter), granted conditional Development Plan Consent under the Development Act 1993 to Development Application No. 211/1080/2009 (dated 1 October 2009), made by BCL International Pty Ltd (BCL hereafter), for a proposed student accommodation development on a now vacant allotment at 154 Anzac Highway, Glandore. The land is located in the Residential Zone (RZ hereafter) and Policy Area 40 (PA40 hereafter) of the Council’s Development Plan, consolidated version 2 October 2008.
  2. The appellants, who were representors to the Council following public notification of the Category 3 development, and being aggrieved, lodged an appeal to this Court against the Council’s decision of June 2010. Key issues arising from the Council’s refusal and the cases of the parties are summarised as follows:
  3. In the presence of the parties, the Court inspected the subject land, the locality and adjacent areas on the morning of Tuesday 12 October 2010.
  4. Evidence presented to the Court, to which regard is given, comprised for the appellants, Mr J Ellis, a consultant town planner (Exhibit A2); Mr M Kavanagh, resident/owner of 3 Ruthven Avenue; Mr M Salandra, a builder and resident/neighbour of the adjoining property to the west at 1 Ruthven Avenue; and Mr R Heggie, owner occupier of 5 Waymouth Street to the south-east, and owner of 150 Anzac Highway, adjoining to the north-east, a tenanted property; and for the respondent Council, Mr J Banks, a qualified town planner in the employ of the Council (Exhibit R3); and Ms M Mellen, an experienced consultant traffic engineer (Exhibit R2); and for the second respondent/applicant, Mr P Brunning, an experienced consultant town planner, (Exhibit D); Mr P Weaver, an experienced consultant traffic engineer (Exhibit E); Ms B Boey, a Director of BCL and the proponent and key person likely to be managing the proposed development; and Ms M Styles, a Manager of Eynesbury College – Coglin Street Campus.
  5. The appeal proceeded to hearing in the absence of a conference; such conference was dispensed with by the Court pursuant to s 16(3) of the Environment, Resources and Development Court Act 1993, with the support of the parties on the basis that it would serve no useful purpose.

The Subject Land

  1. The subject land is Lot 21 DP 3061 (contained in Certificate of Title Volume 5554 Folio 996). It is rectangular in shape with dimensions of 20.57 metres average width and a depth of some 42.67 metres providing for a site area of approximately 878 square metres.
  2. The land is relatively flat but with filling that sits slightly above frontage levels and land to the rear, to the south-west. It is devoid of vegetation of any note or significance. It has remnant, old-style and now relatively sub-standard boundary fencing.

The Development Proposal

  1. The proposed built form development and layout are set out in Exhibit A with an alternative parking area layout espoused by one witness, in Exhibit K and it is for the construction of a two-storey accommodation building with some 32 bedrooms for individual habitation by students, together with shared common facilities such as a lounge, stores and bathrooms (at each level) and dining room/kitchen, administrative office and laundry at ground level only. The administration office for on-site management is in the front north-east corner of the premises.
  2. Four on-site car parking spaces are to be provided (Exhibit A, sheet P1a), or potentially five (as per Exhibit K), at the front of the site with access from Anzac Highway together with a secure bike parking facility to the rear of the proposed building with pedestrian access along the north-eastern side. The area surrounding the building is proposed to be generally landscaped as a common garden area and with some potential drying space. I note that the Council reserved one matter in making their decision and that related to a detailed landscaping plan.
  3. The proposed building is of contemporary style with curved metal roofing over the front building element and uplifted part-covered polycarbonate sheet roofing over the atrium and as a skylight over the internal stairs. Walls are to be constructed using sand-coloured rendered concrete panels, with aluminium framed windows, and with external timber screens to upper level windows to bedrooms and to the emergency stairwell adjacent the atrium.
  4. Exhibit B is a 3D representation of the proposal but also included a front plinth and pillar with timber slatted infill fence, and pedestrian access and vehicle entrance gates said to be electronically/remote controlled. These were said to be included as part of the development, though not appearing on either Exhibits A or K.
  5. A small outbuilding to the rear is proposed including a secure bike parking facility together with an underground concrete rainwater tank and a store for batteries associated with potential solar panel energy supply.
  6. The buildings have roofed building area of some 516 square metres (relying on the architect’s calculations), resulting in a site coverage of some 58 percent, with a wall height of 6 metres generally (closer to 7 metres for the front building element), and the building is to be set back approximately 8.5 metres from the front Anzac Highway boundary, 2 metres from side property boundaries and 8 metres from the rear boundary, excluding eaves, shade/privacy attachments and the small outbuilding referred to above.
  7. The proposed student accommodation use is to be operated and managed by BCL (particularly Ms Boey and two other women), in the context of a signed licence agreement for lodger occupation (draft in Exhibit J), which amongst other things has an expressed condition that the room is only occupied “on the basis that no motor vehicle is owned by the occupant of the room”, and with agreement to abide by the House Rules for residents – (refer draft in Exhibit C). These cover a range of controls/guides dealing with building access and security; visitor attendance; prohibition on smoking and consumption of drugs/alcohol; music and noise-outdoor activities and timing (ceased by 10 pm); non-ownership of cars as mentioned above, and use of the car park by authorised visitors only (and management service vehicles). It was said that student lodgers may be evicted if the agreement or house rules were broken.
  8. Ms Boey, is an experienced operator of student accommodation since 1993, from premises located at 141-143 West Terrace, Adelaide. Whilst that facility is for slightly older tertiary aged students, the proposed facility is to be conducted along similar lines in that it will be for overseas/international students (on the evidence, mostly from South East Asia), and in this instance, generally for students under the age of 18 years and undertaking Years 10-12 or bridging studies at a secondary education level.
  9. It was put to the Court by Ms Boey and Ms Styles, that there is a working relationship between BCL and Eynesbury College, a secondary and pre-university college with a focus on international students and with campuses in the CBD. The applicant BCL is to provide residential accommodation (in conjunction with Eynesbury) and support services including provision of meals and cleaning for students attending this facility.
  10. The applicant accepts the responsibility, together with Eynesbury College, of acting as guardian for these students and attending to student welfare. The applicant intends to work closely with Eynesbury College to ensure that appropriate facilities are provided for students and that there is a safe and productive environment conducive to learning as the primary focus of the residents.
  11. Having regard to the proposed characteristics of the use, activities and proposed management, and in the light of Whitington & Ors v City of Burnside & Domain Project Development Pty Ltd [2003] SAERDC 13, I find that the development proposal is for a student accommodation facility.

The Locality

  1. The definition of the locality required 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 this specific proposal affects, to a notable degree, and for this matter it is to be based on visual and character perceptions, pedestrian and vehicle movements and car parking factors. I have had regard to the localities defined by Mr Brunning and Mr Banks, and the description provided by Mr Ellis – all are similar and I find that the locality extends as follows:
  2. The locality is mixed in land use – primarily low/medium density residential south-east of Anzac Highway (detached dwellings, group dwellings, residential flat buildings, mostly of one storey but some of two storeys), except for a shop/showroom/office development to the east on the corner of Anzac Highway with Wellington Street; the large dominant Kurralta Park K-Mart based shopping centre with large car park and peripheral commercial uses, and two-storey/higher density residential flat buildings all to the north across Anzac Highway, being the other main features.
  3. Public transport appears to be convenient with a bus route along Anzac Highway, with bus stops within close, easy walking distance, and (some 400-600 metres to the south/south-east) the Adelaide/Glenelg tram service with a stop within comfortable walking distance at the overhead South Road crossing. South Road also provides bus links both north and south of the City including to Flinders University and to regional centres.
  4. Exhibits R6 and R7 (a series of aerial photos of most of the locality on different days of the week and times of the day) highlight the extent of use of the shopping centre car parking; on-street parking in Ruthven Avenue, Waymouth Avenue and Wellington Street, and along Anzac Highway kerbside and on verges; traffic levels at non-peak times of the day; and urban development roof and allotment outlines together with gardens, open spaces and street trees. A small local park/reserve – off Wellington Street – exists to the south-east of the subject land and it is visible in Exhibit R7 photos.
  5. Overall the character of the locality is mixed residential/retail-commercial/transportation; and with mixed buildings styles and appearances.
  6. Amenity levels are assessed to be average only for residential purposes with positives comprising street trees, gardens, and some built form as well as public transport accessibility; and with negatives generally comprising traffic/parking/visual appearance of non-residential development and some medium to higher density built form.

Relevant Development Plan Provisions

  1. I have noted the provisions referred to by the parties and the expert witnesses and I find the following to be the provisions in the relevant Development Plan requiring careful consideration and assessment with regard to the key issues raised as well as providing the context for consideration of the proposal as a whole:

COUNCIL WIDE (CW hereafter)
Objectives: 1, 2, 5, 6, 10, 15-17, 19, 20, 25, 26, 30 and 95; and
Principles of Development Control: 3, 4, 13, 21, 23-27, 29-34, 36, 37, 39, 40, 44, 48, 79, 81-89, 91, 92, 94, 96, 98-110, 113-118, 122-136.


RESIDENTIAL ZONE (RZ hereafter)
Objectives: 1-3; and
Principles of Development Control: 1, 2, 5, 7, 14, 15, 17 and 18.


RESIDENTIAL POLICY AREA 40 (PA 40 hereafter)
Character Statement: (para 1)
Principles of Development Control: 1-4.


Processing

  1. The proposal was afforded a Category 3 designation by the Council and three representations (including from the appellants and one other objecting to the development) were received by the Council raising issues covered by the those set out above in para 2.
  2. Pursuant to Schedule 8 of the Development Regulations 2008 the Council referred the proposal to the Commissioner of Highways on the basis of an altered/new vehicle access to Anzac Highway – a Metropolitan Arterial Road, and the response is contained at pp 50 and 51 of Exhibit R1, and was taken into account by the expert traffic engineers.

Approach

  1. In terms of s 35(5) of the Act 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 RZ and PA40 tested in the specific site, streetscape and locality contexts. 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.
  2. Having regard to s 88(2) of the Act, and despite the relatively limited nature of the issues involved, I have considered the specific proposal against the whole of the Development Plan with regard to all relevant issues in making a decision on this matter de novo.

Planning Assessment

Land Use and its Nature

  1. On the facts of the proposal and the evidence of Messrs Brunning and Banks, I assess that the proposed land use is essentially residential in nature (though run as a business). The students are likely to live in the proposed accommodation building for months (if not years) and with a lodger agreement to occupy a room (Exhibit J). That is a similar finding as arose in Whitington at para 12 by a Full Bench of this Court.
  2. As a residential development in the RZ of the West Torrens (City) Development Plan it is a type of development, whether described as student accommodation (as found) or as a boarding house, lodging house, or multiple dwelling, that is listed as neither complying, nor non-complying (Principles 17 and 18) in that Zone. I have no doubt that it is not a “motel” as defined and listed in Principle 18 and there are no residential dwelling types listed as non-complying in this Zone and Policy Area applicable to the subject land. It is therefore for consideration on its merits.
  3. There are no locational or design criteria set out in the Zone or Policy Area for this specific use, perhaps the closest being those applicable to a medium density “residential flat building”/medium or higher density types, the policies for which have been given some regard by the town planners (for example RZ Objective 3 and CW Principle 48).
  4. Based on those criteria and on a general, first principles/generic approach basis, the location of the subject land (with high accessibility to Metropolitan Adelaide facilities and attractions via the arterial road, bus or tram networks, or by foot or bicycle, central to the Metropolitan area and a number of its higher education facilities, and in near proximity to retail and business goods and services, particularly in the Kurralta Park District Centre opposite), is near ideal and certainly most acceptable on broad land use compatibility and orderly development considerations.
  5. Localised fit and impacts to the adjacent areas are assessed hereunder.

Density

  1. The relevant Development Plan envisages “medium density” residential development in its RZ with a range of housing (refer CW Objective 26, RZ Objectives 2 and 3), and in PA 40 (Principle 2 and Design Technique 2.1 - 270 square metres per dwelling, which equates to some 37 dwellings per ha and is medium density in an Adelaide context), and higher densities than current are elsewhere envisaged, particularly in PA 40 (expressed in the Character Statement) and in CW Principle 48.
  2. With some 32 bedrooms/people on the site area of 878 square metres the development proposal has a density equivalent to 104 dwellings per ha or an average of approximately 100 square metres per dwelling (assuming 3.5 persons per dwelling), and whilst this is tending toward a description of high density in inner Adelaide and probably Council-wide contexts, it is appropriate to look at what, if any, are the significant consequences of people density being higher than generally envisaged.
  3. Built form issues are assessed elsewhere; suffice to say that the height, boundary setbacks and bulk of the building are acceptable in the RZ, PA40 and the locality context, being similar to a residential flat or apartment building as envisaged. A greater number of people and intensity of use would usually give rise to greater human activity (vehicle and pedestrian movement), however in this instance and proposal, assuming, as I must, that the House Rules and conditions are enforced, there will be very low vehicle movement to and from the land (mostly staff/management and some visitors) but there would be higher than usual pedestrian and bicycle movement. In the Anzac Highway frontage context these are all of negligible consequence.
  4. Another consequence might be a greater demand on standard infrastructure (water, sewerage, electricity, telecommunication services). There was no evidence or consideration of any impacts of that kind, however from my experience, given usual standards and provision of infrastructure delivery in Adelaide suburbs, with adequate over supply/capacity allowed for, that is highly unlikely to be a difficulty or a constraint, particularly with a District Centre located opposite.
  5. With a greater concentration of people, there needs to be adequate open space on-site (there was no evidence that the provision for the proposal – atrium and rear yard areas – was inadequate), and reasonable accessibility/proximity to public open space in the general area. In that regard, there is a small local reserve with open area and playing equipment a few hundred metres to the south-east. There is also a local oval – Weigall Oval – some 600-700 metres to the north-west beyond the District Centre. In addition, the bus and tram services provide reasonable access to very large public open spaces (such as the Adelaide Parklands or Glenelg foreshore and reserves), and to many other large and small scale suburban recreational facilities and services. I am satisfied that the degree/proximity or accessibility of public open space whilst perhaps a minor deficiency, in isolation, is not a fatal one to the proposal.
  6. A further consideration concerning greater people density is the risk or likelihood of greater levels of noise or other nuisance from its occupants. This might be in the form of outdoor organised or informal activities – music, laughter, talking, mobile phone use, ball or other game noise, or from light glare or similar; potentially in the central atrium or rear backyard areas. No expert acoustic or lighting evidence was provided to the Court and it is difficult to predict the degree of impact with any accuracy. This possibility seemed to be of particular concern to the appellants residing nearby and with private open space areas adjacent, to the west and south-west, with the boundary fence and, in the case of the atrium, the external staircase structure between.
  7. Whilst there is a possibility of some increased nuisance levels or factors, over and above that from the occupiers of a group of say three or four dwellings/flats/apartments, there are two extenuating factors. Firstly, the proposed use and development is to be managed with on-site adult supervision on a 24 hours a day seven days a week basis, and has the “benefit” of an occupier’s licence agreement, House Rules and other conditions dealing appropriately with building access, security, visitor attendance control, restrictions on alcohol or drug use, music noise levels, time restrictions for use of outdoor area activities from 7am to 10pm only and other generally nuisance minimisation clauses.
  8. Secondly, the likely level of background/ambient noise levels from the traffic and movement of people on Anzac Highway and from the District Centre Shopping Centre use opposite, for much of the day and evening hours, including on weekends, has the effect of partially masking or reducing the impact level of noise generated from the external (or internal) areas of the proposed development.
  9. It is fair to say that good neighbourly behaviour is required in most residential settings, no more so than for a student accommodation facility. It is obvious from the evidence of Ms Boey and Exhibits C and J, that the proponent BCL and Ms Boey in particular, are acutely aware of the importance of appropriate ground rules and the maintenance of good standards of behaviour to avoid potential nuisances between students, as well as with neighbours. Friction or disharmony does not benefit any in a local community.
  10. Despite best efforts by management, I nevertheless acknowledge the possibility that a level of nuisance could arise but I am satisfied that with conditions of consent (such as numbers 1, 8, 12, 13 and 14 imposed by the Council – Exhibit R1 at p 78), and the usual backup of authorities such as the Environment Protection Authority or the police, it will not be to an extent or level to cause significant amenity loss to neighbours warranting refusal of the proposal. I understand that new 2.1 metre (amended to 2.5 metres at the resumed hearing), Colorbond fencing to the side and rear boundaries is also intended by the proponent, and this would assist deflecting some noise that may arise at ground level.

Management (of occupiers/visitors)


  1. As was found in Whitington, para 21:
... a degree of competent management is assumed, as any complex land use (and many simple ones) can become a nuisance to its neighbours if people behave badly.

Whilst Ms Boey clearly has appropriate experience and skills in the management of accommodation for overseas students, I do not consider it appropriate or necessary to place heavy reliance on that or limit any consent only to her presence and involvement, provided that the occupancy agreement and Resident Handbook with House Rules remain and are enforced. I consider that any responsible adult is able to do that properly.

  1. Whilst I understand the fears of the appellants as to possible changes in management over a period of time, which could lead to different, greater impacts upon them, I am satisfied that the proposal itself (including the agreement to occupy and the House Rules) and planning conditions of any consent, such as attached by the Council in this matter, or as may be approved by this Court (and potentially similar to those in Whitington) should ensure appropriate, and reasonable outcomes for neighbours over the long term.

Parking


  1. There are unusual circumstances in play with respect to the parking issue. As part of the proposal (approved by the Council), is the restriction on accommodation occupants “that no motor vehicle is owned by the occupant of the room” (Exhibit J). In addition, only “authorised visitors” will be allowed into the (visitors) car park through the main gate, to be electronically controlled with a security intercom system, and they must leave by 10pm. Hence, the need and use of the proposed car park is to be tightly controlled to authorised visitors, trade/service/medical visitors and staff (potentially up to three) and is not for use by residents or, generally, visitors that are unauthorised or unannounced.
  2. The consequences of the above are significant for the nature and degree of use of the parking area. The evidence of the two traffic engineers, Mr Weaver (Exhibit E) and Ms Mellen (Exhibit R2), are largely based on the given proposition, though the latter also considered and assessed the proposal on the basis that such restrictions were not in place. Both traffic engineers supported the proposal – Mr Weaver preferring a modified car park layout (Exhibit K), with a different arrangement of the space for a disabled driver car park and provision of one extra space (total of 5 rather than 4).
  3. In contrast, the evidence of Mr Ellis who is not a traffic engineer (or a person holding town planning academic qualifications, though he has considerable experience in certain aspects of urban and regional planning, and development roles), was largely on the basis of his perception, despite the evidence of Ms Boey, that the car driving restrictions embodied in the application would or could not be implemented and enforced. He acknowledged that with the amended proposal focusing on younger students (secondary Years 10-12), there was a likelihood of less demand or desire for the driving and parking of vehicles by those students.
  4. In essence, Mr Ellis was concerned that there would be overflow parking to adjacent streets (Anzac Highway, Ruthven Avenue and other nearby residential streets), and that this would be unsatisfactory from a safety and amenity perspective to adjacent residents.
  5. The evidence of Mr Weaver and Ms Mellen (and Mr Brunning), is to the contrary on several basis:
  6. From the evidence, my observations and from my experience, I agree with Messrs Weaver and Brunning, and Ms Mellen, and not with the stance of Mr Ellis on this issue.
  7. The appellants (and Mr Ellis) were concerned about the enforceability of the “no car driving by student residents” element of the proposal, and reinforced by the Council’s condition 13 with the words:
13. The premises must be managed so that no students in occupation at any given time may keep a motor vehicle on or in the vicinity of the site.
  1. I have no doubts that the management intent, expressed by Ms Boey, translates into a high likelihood of the policy being carried through and enforced by BCL.
  2. Whilst I acknowledge that there is some risk of departure or non-compliance by resident occupiers or their friends and family or other visitors, or by BCL or other operator in the longer term, I am satisfied that the combination of this key direction being part of the application, together with the attachment of an appropriately worded condition (meaning any change to the policy or its implementation would require further planning consent), will create a lasting appropriate outcome that is capable of solid enforcement by the Courts or other interested parties.
  3. Comparisons with parking standards for the proposed or similar use were put to me by the traffic engineers. I do not find them to be of great relevance or use in the unusual circumstances of this proposal and the nature of this locality. In any event, I find that the proposed use is likely to have a very low requirement for off-street parking (staff and visitors) and on all considerations, that the car parking provisions and arrangements for its use will be adequate and acceptable.

Design and Appearance


  1. I briefly assess or comment on a number, but not all aspects of the proposed site and building design, particularly those of key relevance.
  2. The proposed building height (6-7 metre walls and two storeys), clearly meets the PA40 guides of 9 metres and three storeys. Those clear, direct guides have important implications for interpretation of other guides relating to degree of compatibility or harmonisation with existing character of development, appropriateness of form, setbacks and visual amenity and propensity for overshadowing.
  3. The proposed building setbacks of 8.5 metres generally (though approximately 7 metres at upper level) to the front, 2 metres to the sides and 8 metres to the rear boundaries (excluding window screens meaning 1 and 7 metre setbacks to the sides and rear boundaries respectively); compared to the Development Plan guidelines of 8 metres (CW Principle 286) or 10 or 12 metres (CW Design Technique 92.2) for front setbacks; 2 metres to sides (CW Principle 94 and PT Design Technique 92.2) and Complying Development condition 6 Table WeTo/1 for residential dwelling types with a 6 metre wall height); and 8 metres (Design Technique 94.6) for rear boundaries; are generally favourable and acceptable in the locality context with similar variations and quantum.
  4. The style of the building, particularly to the street frontage in its streetscape, was criticised by Mr Ellis and the appellants as being a “blank two storey wall” that will “look more like a commercial building than a residence” and said by Mr Ellis not to meet CW Principle 86. That Principle requires dwellings to have doorways or fenestration (meaning arrangement of windows) facing towards the primary street frontage. Though the proposed front door is around the north-eastern building corner and not facing the street (though near to it), the building façade clearly provides for several upper level and ground level windows facing the street thereby meeting the principle of development control.
  5. Whilst there are no Development Plan guides dealing expressly with any desired architectural style and the proposal is of a contemporary/modern style, in the locality and streetscape contexts with mixed architectural characteristics including commercial, retail and low and medium/higher density built forms, I find it to be an acceptable fit.
  6. I now assess other relatively minor, so called design deficiencies raised by Mr Ellis. Firstly in terms of the main entrance door not facing or clearly visible to the street (so positioned, on the evidence, for “Feng Shui” reasons), thereby failing to meet part of CW Principle 87, the student accommodation development will be clearly visible from Anzac Highway with obvious pedestrian and vehicle access gates (with intercoms and security monitoring) such that the purpose of the Principle, to enable visitors to easily identify a particular dwelling, is not so relevant.
  7. Secondly, in terms of a screened location for the storage of domestic/kitchen waste, that is now satisfactorily located and shown on the site plan in Exhibit A before the Court. It includes screening devices. It will need to be managed properly to avoid odour or litter nuisance to the adjoining Salandra dwelling.
  8. Finally, with respect to indirect pedestrian movement being required from say the kitchen area (adjacent to the front office) to the waste storage area, a further external (for staff use only) doorway would, on the evidence of Ms Boey, be installed in the north-western corner of the western wall of the dining room to enable direct access movement to the waste bin area. I do not consider this to be a significant, or important, or a so-called design flaw and I do not consider that it need be mandated. In any event, an alternative route via the fire escape stairwell would probably be a better solution to avoid waste being carried through the dining room area.

Amenity Impacts


  1. Finally there are a number of potential amenity impacts to adjacent neighbours that justify assessment and more than cursory consideration.
  2. Firstly, regarding access to sunlight and daylight – there is some potential impact of reduced access to sunlight/daylight upon the adjoining Salandra dwelling and its rear swimming pool area particularly in the morning and mostly on the shortest day of 21 June. However, I note the shadow diagrams provided by the architect (Exhibit R1 pp 13-18), the report of Mr Banks (Exhibit R1 p 66), and that Mr Ellis had no criticism of the proposal on that count and appeared to accept the level of impact (Exhibit A2 clause 5.2) on the basis of the height and setback guidelines for PA 40 and RZ. It is clear that CW Principle 94 and Design Technique 94.2 are met.
  3. Secondly, in terms of impacts from overlooking and privacy loss, again a topic area found acceptable by Mr Ellis, Mr Banks and Mr Brunning. In regard to CW Principle 99(c) and Design Technique 99.2, as well as Principle 100, BCL’s architects have made strong attempts to minimise the extent and degree of overlooking from all upper level windows on all sides (including the rear), but excluding to the front or roadway, by a mix of high sill heights and more generally, slatted hardwood screens set out from the windows and the upper portion of the emergency stairs and landing on the south-western elevation. There was some criticism and suggestion that oblique-angled views may be obtained via the sides and gaps, to adjacent private open spaces of residential property to the west (Salandra) and to the east (Heggie rental property). That is both a question of degree as well as final design detail of the screens. It would be possible to largely screen the angled view to the sides to achieve reasonable and acceptable levels of privacy. I assess and find that this issue is not a fatal one to the proposal and that finalised detailed design for the screens can be required to ensure minimal, acceptable over-viewing impacts.
  4. Thirdly, concerns and fears were expressed by certain neighbours about the perceived greater likelihood of nuisance being generated by a greater and more intensified number of people on the site, compared to a more conventional residential development (from say three or four apartments/flats), generated by the noise of voices, mobile phones, music, televisions and the like.
  5. This issue was covered and assessed in some detail above in paras 40-44, it is noted that the Court received no expert evidence regarding noise and in addition, I note that certain domestic noise controls exist under other legislation. Further, it is highly relevant to recall that there will be “around the clock” adult management and supervision of the students and there is a requirement for occupiers to abide by the House Rules including some designed to minimise noise nuisance to other residents and neighbours (such as Rules 6.2, 6.6 and 6.7 of Exhibit C). Given these facts and likely circumstances, I am satisfied that whilst there is some risk, noise generated is unlikely to cause significant unreasonable nuisance and annoyance to neighbours.
  6. Despite a concern from the rear (south-east corner) neighbour, Mr Heggie, about an increased security risk of unlawful entry to his property caused by the proposed direct pedestrian link from Anzac Highway, the front car park and pedestrian gate, along the eastern side of the proposed building to the rear yard, I am unable to find good or sufficient reason to uphold that concern to require either refusal of the proposal or a design modification to it. I reason that the electronic/security controlled front gates and management/supervision by an adult manager at all times, makes the likelihood of such a route being a significant cause of a heightened security risk, to be very low.
  7. Finally, I consider the pure aesthetic/visual amenity impact of the proposed building and this is to be assessed in the light of RZ and PA 40 guidelines envisaging up to a three storey building of increased density and with an absence of style directions or mandates.
  8. The proposed building is of lesser height (storeys or metres) than is now a reasonable/realistic expectation for the land; it is set back adequately from the side, rear and front boundaries; open space areas to the sides and rear are generally designated for planting of vegetation (but required to be confirmed in detail by condition of consent); boundary fencing is to be replaced and raised; the style is modern with the character of roof elements relating to parts of the shopping centre roof form, the walls are to be of rendered off-white masonry appearance; privacy screens are to be of slatted hardwood; and the new/amended front fence/gate element (as per Exhibit B, needing to be detailed on the site plan in Exhibit A), will be strongly in keeping with the mix, range and type of fencing in the locality.
  9. Whilst a subjective judgment, I assess that the proposed building will be aesthetically pleasing, attractive and sufficiently compatible and in harmony with the mixed built form characteristics of the locality and that it will not inappropriately detract from visual amenity of the locality. In the absence of expert architectural evidence, I so find.

Conclusions


  1. I have carefully considered all the relevant issues in this matter, the evidence, the Development Plan guidelines and what I have observed on the view and, whilst there are a few aspects that may be somewhat negative to the locality or certain neighbours, considering all aspects together and weighing up the whole proposal against the whole of the Development Plan, I assess and conclude that on balance, the proposal warrants Development Plan consent. The proposal exhibits some variance but is not seriously at variance with the Plan. I find that:
  2. Hence, I agree with the decision of the Council to grant Development Plan Consent. However, there are a number of aspects that have arisen (amendments, or in evidence, or from my assessment), that justify re-visiting and the hearing of further submissions and for the Court to determine, in terms of conditions of consent. Further, a complete, accurate, scalable version of the proposed plans printed to full size at the nominated scales with amendments that have arisen (such as the front fence/wall/gates/intercom; side/rear fence replacement and upgrading; parking area as Exhibit A but to accurate scale; pedestrian gate and path to the north-eastern side; new external doorway to the dining room in the north-west corner for staff access to the refuse storage area or alternative solution; management of the refuse storage area; designation of which room will be used by an on-site manager for overnight stay and multi purposes; a detailed landscaping plan with species/numbers/heights at planting; a detailed design of the window/landing screening devices including gap dimensions and gap percentage, and also to obscure/minimize oblique angled views to their sides), are all required.
  3. I encouraged the parties to confer regarding the upgraded plans and the review/drafting of any amendments to conditions of consent, and I heard them further on these aspects.
  4. Due to attendance and representation difficulties, the appellants prepared written responses on some of these aspects, received and marked Exhibits A3 and A4. Some of that material indicated their dissatisfaction with the tenor and direction of the Memorandum which, including the point on the overall building design theme, are largely not responded to further, leaving a number of responses on amended plans and impacts/management issues to which I have given further careful consideration. I also take into account oral submissions by telephone by Mr Salandra. I comment further on most of the aspects outstanding.
  5. Amended proposal plans were tendered (marked Exhibit L) and they now scale adequately, and details regarding front fencing/gates/intercoms, side/rear fencing, new external doorway to the south-west side of the dining room, landscaping proposals with adequate particularity and further detail regarding some screen/privacy awnings to windows, were provided and shown on the plans.

Window Awnings, Screens/Privacy


  1. The appellants’ submission is that they prefer more traditional or regularly required fixed opaque windows for the lower portions and openable, clear windows for the upper, as, whilst a person seeking to overview could stand on a chair (or other similar object), to do so they would make themselves visible to those being overviewed, and that is preferable to someone being able to overview via partial lattice screens in standing positions via the gaps in the angled timber slats or sideways. I can appreciate that view point, as well as the logic of the proponent and its architect in terms of dual goals being achieved by the screens of both sun screening, ventilation, as well as partial privacy screening.
  2. Submissions on behalf of the second respondent are correct to the extent that the test is not to achieve total screening and absolute privacy from one property/development to another, but rather to seek and achieve an adequate, reasonable level of privacy between them. I note the distance from the screens to sensitive elements of the adjoining properties.
  3. Nevertheless, I am not yet (based on the detail of Exhibit L) and was not able on earlier plans, to be satisfied with the adequacy of the design and detailing of the proposed screens to sufficiently minimise/obscure angled views to the sides of each screen or as to the angles, dimensions and widths of view paths through the slats (particularly from room numbers 22-25 and 32; nor 14-18 and 30; nor 11 and 13 to the rear). I am prepared to accept the potential adequacy of the screens, with a further condition, rather than mandating fixed opaque, unopenable glazing to a height of say 1.7 metres, due to both the dual energy efficiency and ventilation benefits it brings, as well as the quality of internal amenity for occupiers.

Bin Storage


  1. The location of the bin storage area in a screened position toward the north-west corner of the development is acceptable and no other location would provide greater advantages/benefits and fewer potential impacts or negatives to neighbours in general. It is visually acceptable with the new timber screen, side fence and pergola with vines features. A relatively standard condition can and should ensure it is properly managed and maintained. I do not accept the submission that self management alone, can be relied upon, particularly in the longer term.

Landscaping


  1. It is important in any urban area of close settlement pattern, that tree selection is conscious of growth habit and characteristics so as to minimise tree/root interference with adjoining property and improvements, and no more so than when mandated by a planning authority.
  2. Proximity of adjacent dwelling buildings and a swimming pool (to the south-west) need to be taken into account. It would seem that the submission made on behalf of BCL and its architect indicate awareness of these issues in plant/tree selection, together with use of a list of plants said to be broadly recommended as suitable by the Council. It is noted that a larger tree (5-10 metres) is placed in the south-western corner of the site, removed from buildings and the swimming pool, and it is acceptable.
  3. The mid-size (5-8 metres) trees are placed to the side boundary and in the rear open space and they are also acceptable. The mid to low bushes (2-5 metres) are appropriately placed to side and front boundaries.
  4. Whilst no expert arboricultural or horticultural evidence was provided to the Court, from my general experience and relying to an extent on the selections by the architect, I am satisfied with the appropriateness of the landscaping plan both in functional, aesthetic and potential impact terms. It needs to be implemented and maintained in a timely and appropriate manner.

Fencing


  1. The appellants seek a 3.0 metre high Colorbond fence to their side boundaries (tapering to 2 metres at the proposed building alignment back from Anzac Highway, as opposed to the 2.1 metre height shown on the amended plans in Exhibit L, or compared to the verbal amendment further offered by BCL of 2.5 metres for that south-western boundary). Having regard to the parties’ interests-submissions, and to visual, privacy, aural and shadowing factors, I assess that a 2.5 metre high fence will be appropriate and acceptable, rather than the 3 metres sought by the neighbours, and with such fencing tapering from the building alignment setback 8.7 metres from Anzac Highway, down to 1.8 metres at the north-western corner with Anzac Highway front boundary alignment, and being a single agreed colour to both sides and rear for its full length on each boundary.

External Open Space and Noise


  1. The ongoing voiced concerns of the appellants about the potential noise of people in external areas, or visitor competition for on-street parking, have been thoroughly assessed and considered above, and I conclude are largely unfounded or misguided, subject to the attachment and compliance with appropriate conditions of use and management. The substantive conclusions outlined in para 74 above remain.

Conditions


  1. The Council and BCL collaborated regarding conditions of consent, and provided a draft to the Court and the appellants, and these comprised minor modification to condition 1 regarding approved plans; retention of Council conditions 2-16 unaltered; and an additional five conditions dealing with protection of the street tree and works in its vicinity. With some minor modifications they are found to be appropriate and acceptable, but I also require additional conditions as mooted above concerning the window/screening for privacy; bin storage area management and south-west side fencing and other variations.

Decision


  1. The appeal is allowed, but only for the purpose of varying the conditions of consent imposed by the Council on DA No. 211/1080/2009.
  2. Development Plan Consent is granted subject to the following conditions:

1. The development must be undertaken in accordance with the plans drawn by David Jellett Nos. 09.10 P1b, 09.10 P2b, and 09.10 P3b last amended December 2010 and marked Exhibit L.


2. The construction of a drainage system and the position and manner of discharge of a stormwater drain must not at any time:


(a) result in the entry of water into a building; or
(b) affect the stability of a building; or

(c) create unhealthy or dangerous conditions on the site or within the building; or

(d) flow or discharge onto the land of an adjoining owner; and not flow across footpaths or public ways.


  1. All driveways, parking and manoeuvring areas must be formed (surfaced with concrete, bitumen or paving) and properly drained in accordance with sound engineering practice, prior to use commencing. They must be maintained to the reasonable satisfaction of the Council thereafter.
  2. All carparking spaces must be line marked in accordance with Exhibit L prior to the occupation of the proposed development and line marking must be maintained so as to be clearly visible at all times.
  3. Refuse bins are to be located in the screened bin storage area shown on the approved site plan and that area managed so as not to cause a significant loss of amenity to adjoining residents, in the reasonable opinion of the Council.
  4. Landscaping must be undertaken in accordance with the approved plans Exhibit L and must be completed prior to occupancy of the development. Any plants that become diseased or die must be replaced promptly with suitable like species and must be maintained to the reasonable satisfaction of the Council’s nominated arborist or horticultural officer.
  5. At least one adult supervisor, not being a student occupant of the premises, must be in attendance on the premises on a 24 hour basis to ensure that no unreasonable noise, anti-social behaviour or other nuisance is caused to residents living near to the subject land.
  6. The maximum number of students and caretakers/supervisors residing on the subject land at any time is to be no greater than 33.
  7. With the exception of staff and caretaker(s)/supervisor(s) residing on the premises, no person is permitted to be an occupant of the approved building unless he or she is:

(a) a student currently enrolled full time in, and attending at, a secondary or tertiary educational establishment in South Australia; or


(b) a student enrolled in, and attending at, an English language or other course undertaken as a pre-requisite to admission to a secondary or tertiary educational establishment in South Australia.


  1. With the exception of a single trial period of no longer than two weeks for each occupant, each occupant must enter into a written tenancy agreement, the minimum term of which must be 6 months, generally as per Exhibit J.
  2. No outdoor portion of the premises shall be used for entertainment, functions, parties or other similar activity, or the preparation or taking of meals, after 10.00pm.
  3. The premises must be managed so that no students in residence at any given time, may keep a motor vehicle on, or in the vicinity of the subject land.
  4. Visitors to the site will be permitted and allowed entry only between the hours of 7.00am and 10.00pm on any day.
  5. The Council is to be given one business day’s notice of the following stages of building work:

15. The finished floor level shall be a minimum of 350mm above the highest point of the watertable on the Anzac Highway site frontage.

16. Any excavation carried out under the drip line of the street tree immediately adjacent to the front boundary of the subject land (hereafter, “the Protection Area”) must be excavated by hand or air-spade or any similar method which permits tree roots to be uncovered without causing damage to those roots.

  1. Where excavation within the Protection Area reveals roots, such of those roots which are 50mm in diameter or less may be removed using a sharp pruning tool such as secateurs or a hand saw. Use of any axe or blunt tool (e.g. excavator bucket) is not permitted.
  2. Roots which are 50mm in diameter or less which are found during excavation within the Protection Area must be removed in accordance with the condition above before any further excavation by machine.
  3. Roots found during excavation within the Protection Area which exceed 50mm in diameter must be reported to the Council and no further work undertaken within 100mm of any such roots unless and until consent from the Council pursuant to this condition is obtained, and thereafter any works are undertaken in accordance with the advice (if any) of the Council’s nominated arborist or horticultural officer.
  4. Damage to any above-ground part of the street tree immediately adjacent to the front boundary of the subject land due to heat exposure, exposure to high pressures, caustic or corrosive chemical drift (including cement and mortar dust) must be avoided.
  5. The detailed design of the window screens/awnings facing side and rear boundaries shall minimise direct over viewing of adjoining properties by persons standing on the upper floor level, is to be provided to and approved by the Council, prior to or at the time of the issue of Building Rules Consent, and shall be implemented prior to use of the building and maintained thereafter to the Council’s satisfaction.
  6. The boundary fence to the south-western side boundary shall be 2.5 metres in height (including any foundation), measured above the finished ground level of land on the adjoining properties, except that from the proposed building alignment to the Anzac Highway boundary (8.7 metres set back), it shall taper down from 2.5 metres to 1.8 metres in height at the north-western corner, to match the height of the front fence.
  7. The colour of the double sided Colorbond fence to the side and rear boundaries shall be agreed with the respective adjoining owners, except that it shall comprise a single colour only for each boundary, or where there is disagreement with any neighbour, a colour to the reasonable satisfaction of the Council, which blends with the finished colours of the building hereby approved.
  8. The bin storage area adjacent to the dining room shall be managed, kept clean and maintained at all times to the reasonable satisfaction of the Council.
  9. There will be an order to that effect.

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