CITY LOFTS ADELAIDE P/L v ADELAIDE CITY COUNCIL [2011] SAERDC 6 (18 February 2011)

Last Updated: 22 February 2011

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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CITY LOFTS ADELAIDE P/L v ADELAIDE CITY COUNCIL

[2011] SAERDC 6

Judgment of Commissioner Mosel

18 February 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for the use of vacant land as an (open lot) ancillary car park for a period of 3 years - Mixed Use Zone - Gouger Street Policy Area 25 - the principal issue is whether, as a use of land, the proposal would assist the attainment of the objectives for the Zone and Policy Area - observations made about aspects of the appellant's case - the proposal is not consistent with the expressed Desired Character for the Zone and Policy Area, is not a preferred type of development for vacant sites nor meets the design and siting principles for car parks.

Appeal dismissed - the decision of the Council to refuse Development Plan Consent is confirmed.

Development Act 1993 (SA); Development Regulations 2008 (SA), referred to.

City Lofts Adelaide P/L v Adelaide City Council [2007] SAERDC 59; Butterworth v District Council of Yankalilla [2007] SAERDC 59; City of Mitcham v Freckmann [1999] SASC 234; 74 SASR 56; Lach v District Council of Mallala & Ors Judgment (1996) Judgment No. OE380 22/10/1996, considered.

CITY LOFTS ADELAIDE P/L v ADELAIDE CITY COUNCIL
[2011] SAERDC 6

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This appeal concerns a development proposed on the land situated at 304-320 Morphett Street, Adelaide (“the subject land”).
2. In February 2010 City Lofts Adelaide Pty Ltd (“City Lofts”) applied to the Adelaide City Council (“the Council”) for Development Plan Consent to “use vacant land as temporary ancillary car park to office at 133-139 Gouger Street for a period of five years”.[1] The Council treated the proposal as a Category 2 development. The appeal arises from the decision of the Council to refuse consent. Its reasons for reaching its decision are set out at p 40 in Exhibit R1.
3. Mr Moorfield is the sole director of City Lofts and appeared on its behalf. He did not call any witnesses. Mr Psaltis appeared for the Council and called Ms Dand, a planner in the employ of the Council.
4. At the commencement of the hearing, in the presence of the parties, I viewed the subject land, noted the location of the office at 133-139 Gouger Street, and observed from a distance the open lot car park situated on the corner of Wright and John Streets (11-19 Wright Street) to which reference was made during the proceedings.

The Subject Land and Proposed Development

5. The subject land is depicted on Maps Adel/24 and Adel/54 in Council’s Development Plan[2] (“the Plan”) and within the Mixed Use Zone (“the Zone”) and the Gouger Street Policy Area 25 (“the Policy Area”). It is made up of five contiguous allotments and is situated on the corner of Morphett and Wright Streets. It has a frontage to those streets of, respectively, 55.14 m and 27.96 m.
6. The subject land is flat and enclosed with a chain mesh security fence (covered with black shade-cloth). Around the street frontage is poorly maintained landscaping. There remains on the subject land evidence of its past use as a car park including two or three floodlights.
7. To the south of the subject land is Whitmore Square and to the east is residential development. To the north and west is a mixture of residential and commercial land uses.
8. The offices at 133-139 Gouger Street (with which the proposed car park would be associated) occupies the upper floor of the building situated on the south eastern corner of Gouger and Morphett Streets.
9. The proposal to which the Council’s decision relates is described in Ms Dand’s Statement of Evidence (Exhibit R2) in the following terms:

The proposed development involves the provision of an open lot car park for the staff employed at Power Health Solutions, situated on the corner of 133-139 Gouger Street and 282-290 Morphett Street approximately 80 metres from the subject site.
The proposal is for a temporary period of five (5) years. Access would be made available between 7:30 and 9:00 in the morning and 4 – 5:30 in the afternoon Monday to Friday by simply opening the gates. Individual parkers would have a gate key to provide access at other times.
Modifications to the site would include regrading the surface and application of asphalt, traffic flow indicators and parking spaces for a total of 55 parking bays, the erection of signage indicating the car park is “private and for PHS employees / visitors only”, black cloth to the fencing and landscaping to the southern and western perimeter of the site.
There are no details provided as to how access would be restricted outside of the “opening hours” (i.e. weekends and late at night) given individuals have a key to gain access to the site. It is also unclear as to how visitors would gain access to the site outside of the “opening hours” in the morning and afternoon assuming they would not have access to a key.

The Proposal is Amended for the Purposes of the Hearing

10. Early in the proceedings, Mr Moorfield amended the proposal as follows:
    • The period for which consent is sought has been reduced from five years to three years; and
    • The proposed surface of the car park would be dolomite gravel in lieu of asphalt.
11. Mr Psaltis submitted that these changes did not materially alter the essential nature of the proposal. I agree. Also he submitted that since the amendments did not satisfy the Council’s concerns there was no basis for the resumption of settlement negotiations.

The Relevant Provisions of the Plan

12. At para 3.1 of Exhibit R2 Ms Dand lists numerous provisions of the Plan that she took into consideration when forming her opinions about the proposal’s planning merits. Having perused all of them it is apparent to me that it is necessary in the interests of dealing with the central issue in this appeal to distil from them the policy intent for the development of land within the Zone generally, and specifically the Plan’s intent for the development of vacant sites.
13. Insofar as the issues in this appeal are concerned, the broad thrust of the Mixed Use Zone can be ascertained by reference to particular aspects of the stated Desired Character and several Objectives and Principles. The stated desired character has several components but the most relevant are:

Desired Character
The desired character for the Zone is comprised of:
(a) high quality new buildings and the renovation and adaptation of heritage places to provide a substantial and cohesive urban environment, achieved through the transformation and consolidation of disparate, low-scale townscapes;
(b) development comprising a cohesive and continuous, medium-scale, built form edge to the Squares, enclosing them and reinforcing them as key spatial elements within the built fabric of the City;
(c) provision of a prominent built-form edge to the City along North Terrace and West Terrace with well-designed, medium scale development establishing a consistent scale and quality of built-form along the frontages;
...

14. Objective 1 encourages development “that strengthens, achieves and is consistent with” the Desired Character for the Zone and the Policy Area. The main Objectives and Principles that assist in the attainment of these goals are in the following terms:

Objective 2: A zone accommodating a mix of activities including service industries, warehouses, shops, showrooms, hotels, restaurants, cafes, educational facilities, commercial and residential development.
...
Objective 4: Development of vacant and under-utilised land and progressive improvements to areas of poor environmental amenity and fragmented built-form character with development of high quality medium-scale buildings.
Objective 5: Development of a high standard of design and external appearance which enhances the level of integration, amenity and visual quality of individual sites, arterial roads, public places and the locality
Objective 6: Amalgamation of allotments into larger sites to achieve optimum uses of land and to facilitate desired co-ordination of car parking and minimisation of the number of access points to major roads.

15. Principle 1 lists, in the following terms the desired land uses within the Zone.

1 The following are the desired land uses and development should be for such uses:
Bank
Community centre
Conference centre
Consulting room
Educational activities
Hotel
Indoor recreation centre
Office
Residential Development
Restaurant
Service Industry
Serviced Apartments
Shop
Showroom
Warehouse

16. The relevant aspects of the Desired Character of the Policy Area which Objective 1 for the Zone and Objective 1 for the Policy Area seek to strengthen are as follows:

(a) a mix of residential, retail, restaurant and commercial uses including professional services, wholesaling and community use activities. Late night entertainment activities should remain limited and few in numbers and function as a secondary use to primary uses in the Policy Area;
(b) a transition in scale from the built form, scale and activities to the north, to the lower intensity Residential Zones to the south where the low to medium scale built form of the Policy Area becomes increasingly low scale and residential in character;
(c) Gouger Street being a colourful, intimate and active restaurant and shopping street which complements the liveliness of the adjacent Central Market and supports the retail, community and cultural functions of the Policy Area;
...

17. At a more specific level, Principle 2 below lists the preferred land uses for the Policy Area.

Land Use, Built Form and the Public Environment

2. Retail, restaurant, commercial, educational, medical, community, leisure, cultural and residential activities, should comprise the predominant land use mix. Late night entertainment activities, such as licensed entertainment premises and hotels with entertainment, are secondary to the primary land use mix and should be limited and few in numbers. Uses supporting the law courts around Victoria Square are appropriate.
18. On their face, the Zone and Policy Area provisions say little about the development of vacant land for an open lot car park for the benefit of an existing use (in this case some 80 m away). To the contrary, there is a clear intent in Objective 4 (above) to utilise vacant land for high quality medium scale buildings, and on one reading of its terms, para (g) of the Zone’s Desired Character suggests a preference for car parking to be in the form of a multi-level building.
19. However, by reference to certain provisions in the Council Wide section under the headings “Car Parking” and “Vacant Sites and Buildings” the Plan gives some guidance to the assessment of the merits of the proposal. On the provision of car parking, Objective 76 seeks to support the growth in city activities by ensuring an “adequate supply of short-stay and long-stay parking ...” To that end, Principle 253 advocates - in the Mixed Use Zone and other Zones - the provision of car parking in the following way:

(a) adequate car parking should be provided within the site area of the development to meet the demand generated by the development;
(Emphasis added.)
...

20. Given the intent of Principle 253 with respect to the location of a car park in relation to the use that it serves, Principle 254(b) then speaks to the way in which off-street parking should be provided:

254 Off-street parking should:
...
(b) be located away from street frontages or designed as an integral part of buildings on the site. Provision of parking at basement level is encouraged; and
(Emphasis added.)

21. As to the way in which the plan seeks to deal with vacant land, Council Wide Objective 58 and Principles 206 and 207 are most relevant to the subject matter of this appeal.

Objective 58: The temporary use of vacant or underdeveloped land which is not likely to be the subject of long term development in the short term.

206. Vacant and underdeveloped land and buildings should be brought into use as soon a possible.
207. Where there is no immediate prospect of a long term use, a temporary use for up to 24 months (excluding temporary car parks) is encouraged. Temporary uses of vacant or underdeveloped land should be landscaped, screened and/or treated so that negative impacts to the public realm are minimised.
22. There are several other provisions to which Mr Moorfield made mention in his submissions, namely Council Wide Objectives 25, 59, 62 and 77, and Principle 80. I have considered all of them and, where relevant, taken them into account in the assessment.
23. I have also taken into account the Plan’s intentions for the adjoining Residential (Whitmore Square) Zone (which Zone effectively abuts the subject land) and in particular Principle 17. This provision is in the following terms:
    17. Car parking should be sited behind the main buildings away from the Whitmore Square and major street frontages.

Background and City Lofts Case in Brief

24. The background material in Exhibit R2 shows the interest by City Lofts to use the subject land as an open lot car park dating back to 1998. According to Ms Dand, the Council granted consent to use the land as a temporary open lot car park until 1 April 2000. Subsequent development applications to extend the consent were refused. A proposal in 2006 to establish a car park for five years for use by the BTZ Hotel was also refused. That decision was appealed and came before me for hearing in 2007. I dismissed the appeal; the principal reasons being set out in paras 32-42 inclusive in City Lofts Adelaide P/L v Adelaide City Council [2007] SAERDC 59 (“City Lofts Adelaide”). In December 2008 a Development Application was made for the establishment of a temporary open lot car park until 31 January 2010. Consent for that proposal was also refused by the Council.
25. It is against this background that Mr Moorfield made the present Development Application to establish a car park on the subject land and in consequence of the decision of the Council, lodged this appeal. In Mr Moorfield’s view, the appeal should be allowed, the Council’s decision set aside and Development Plan Consent granted for the following broad reasons:
    1. The proposal should be recognised for what it is – a temporary use of land that would be associated with and for the benefit of an existing use. Furthermore it would be of a type that would jeopardise the attainment of Desired Character for the Zone and Policy Area.
       
    2. By virtue of an “ancillary car park” being excluded from the list of non-complying (car parking) developments in Zone Principle 35, the proposal would not be in conflict with the Plan’s policy intent.
       
    3. The proposal would support the expressed intent of the Plan to:
       
       • Provide off-street car parking for the specific benefit of an existing use;
       • Eliminate from the locality a derelict site, replace it with a neat landscaped area thereby improving the visual amenity of the locality generally and Whitmore Square specifically; and
       • Enhance the public environment providing an active and secure area for pedestrians.
4. The proposal being described by the Council as an “ancillary car park” would not, by the use of that very term, be the subject of assessment against Principle 207 (above).
   
5. The proposal would be similar in nature and circumstances to other ancillary car parks approved by the Council.
   
26. During the course of the hearing Mr Moorfield referred to the decision in Butterworth v District Council of Yankalilla [2007] SAERDC 59 in which matter the term “temporary” [use of land] was considered.

Discussion & Decision

27. All things considered it becomes abundantly clear to me that the issues in this appeal are similar if not identical to those encountered in City Lofts Adelaide. That is to say, having regard to all relevant provisions, the central issue to be determined is whether the proposal, as amended by Mr Moorfield, is sufficiently conducive to the attainment of the policy intent for the Zone and Policy Area as would warrant the grant of consent. In short, the principal issue concerns the suitability of the proposed use of the subject land.
28. Before addressing that issue it is necessary to make some comment about aspects of the case for City Lofts advanced by Mr Moorfield. First, in the absence of any evidence from him about his plans for long-term development of the subject land, I am unable to determine whether the circumstances envisaged in Council Wide Objective 58 and/or Principle 207 are at play and thus the subject of consideration in the assessment. Consequently I am left with a submission by the Council – founded on the above background information – to the effect that (contrary to the purpose and intent of these provisions) City Lofts intends to use the subject land for car parking purposes for a period well beyond that proposed. It is on this basis Mr Psaltis contends that there is nothing in the case presented by Mr Moorfield that enlivens Objective 58 and Principle 207.
29. The second matter concerns a much laboured line of argument advanced by Mr Moorfield in support of his case. In his view the Plan speaks in support of the proposal in the Zone and Policy Area because the type of car park proposed (an “ancillary car park”) does not appear in the list of non-complying developments for the Zone (Principle 35). This line of argument must be rejected because, quite simply, case law makes it impermissible to take this approach in the assessment of a proposal against the relevant provisions of a Development Plan. To do as Mr Moorfield advocates is tantamount to creating a presumption in favour of the proposal without having due regard to all relevant provisions without having undertaken the task of distilling from them the overall intent, purpose and Desired Character of the Zone and Policy Area and, in this case, without having assessed whether the proposal is more or less conducive to the attainment of the desired goals: City of Mitcham v Freckmann [1999] SASC 234; 74 SASR 56.
30. Finally it must be acknowledged (as did Ms Dand during cross-examination) that the proposal, by virtue of the intended landscaping and floodlighting, might confer some benefits on the locality. However no evidence was adduced to support Mr Moorfield’s contention that the provision of the car park was necessary (in parking demand terms) to support the office at 133-139 Gouger Street or was necessary in the pursuit of Objectives 75 and 76. Nor am I satisfied with his contention that the present dilapidated state of the subject land should necessarily be a factor weighing in support of the proposal.
31. In my considered opinion, there are three broad reasons why the proposal by City Lofts does not warrant the grant of consent. First, the principal thrust of the Plan is to encourage the type of development in the Zone and Policy Area best expressed by para (b) of the Desired Character for the Zone and Objective 4. To reiterate, para (b) has the overall goal of development “comprising a cohesive and continuous, medium-scale, built form edge to the Squares, enclosing them and reinforcing them as key spatial elements within the built fabric of the City.”
32. Objective 4 for the Zone, consistent with the overall intent for the townscape in the Policy Area, urges the development “of vacant and under-utilised land” with “development of high quality medium scale buildings”. The proposed use of land is in direct conflict with these goals.
33. It is true to say, as Mr Moorfield submitted, that because a car park of the type proposed would remain essentially open and underdeveloped land, it would not be a major impediment to the “built form” future desired by the Plan. Nevertheless, there was nothing persuasive in the submissions of Mr Moorfield nor the history of the land while in City Lofts’ ownership that suggests to me that its intentions include development of the kind envisaged by the Plan.
34. Secondly, even if a car park might be contemplated in the scheme of the Plan, it could not be said that the proposal would be of (or could be adapted to) the type or be in the situation envisaged either by para (g) of the Zone’s Desired Character or by Principles 253(a) and 254(b). Nor is it the type that would be compatible with the thrust of Principle 17 for the Residential (Whitmore Square) Zone.
35. The final reason resides in the assessment of the proposal against Objectives 58 and Principles 206 and 207; which provisions speak directly to the use of vacant sites. In view of the comments in para 28, it would be open to the Court to conclude that the provisions of Objective 58 and Principle 207 carry little weight in the assessment. However, if that approach is wrong and those provisions come into play, on my reading of Principle 207[3], the use of vacant land as a temporary car park is expressly excluded from the temporary land uses preferred by the Plan in pursuit of Objective 58.
36. In so concluding, I have taken into account Mr Moorfield’s submissions about Principle 207 and Mr Psaltis’ submissions about the many factors that come into play - including the terms of the relevant Development Plan - when considering whether a proposed development should be treated as an application for temporary authorisation: see Butterworth and Lach v District Council of Mallala & Ors (1996) Judgment No.OE380 22/10/1996.
37. I have also taken into account Mr Moorfield’s agitation about the existence of many ancillary car parks that apparently exist in the Policy Area and the particular concerns about one situated at 11-19 Wright Street that was recently approved by the Council. At the heart of Mr Moorfield’s submission is a complaint that the Council is not making consistent planning decisions. Of itself, submissions of that nature are of no assistance to the Court’s task of considering the proposal afresh. Nevertheless, as Mr Psaltis said, if open lot car parks of the nature proposed were prevalent in the near vicinity of the subject land, the ability of the Plan to achieve its stated policy intent might be brought into question. That is clearly not the case here.
38. The appeal is dismissed for these reasons. The decision of the Council to refuse Development Plan Consent is confirmed. There will be an order to that effect.
    

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[1] The relevant date of the application is the date on which it was registered; that being 2 March 2010. The description of the proposal has been adopted from the Council’s Decision Notification Form.

[2] The relevant version of the Plan for these proceedings is dated 25 February 2010. In her statement, Ms Dand referred to the provisions of the version dated 7 January 2010 as did Mr Psaltis on occasion. To all intents and purposes the relevant policy content is identical.

[3] Refer para 42 City Lofts Adelaide