MATTHEWS v DISTRICT COUNCIL OF ROBE [2011] SAERDC 60 (20 December 2011)

Last Updated: 23 December 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.

MATTHEWS v DISTRICT COUNCIL OF ROBE

[2011] SAERDC 60

Judgment of Commissioner Hamnett

20 December 2011

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appeal against refusal of Development Plan Consent for a large shed - Residential Zone - nature of the locality - question of precedent - subject land found to be unusual within the locality - ratio of open space to built form - appeal upheld - development plan consent granted subject to conditions.

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

City of Charles Sturt v Hatch 1999 EDLR 495; Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356, considered.

MATTHEWS v DISTRICT COUNCIL OF ROBE
[2011] SAERDC 60

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an appeal by Mr Donald Matthews (the Appellant) against a decision by the District Council of Robe (the Respondent Council) to refuse consent to an application for development plan consent for a shed at 29 Harold Street, Robe. Mr Matthews was aggrieved by this decision and appealed to this Court. The parties agreed to dispense with a formal hearing and requested the Court to determine the matter on the basis of written submissions. The Court received written submissions from the Appellant and from Ms M Gibbs, Administration Officer (Planning) with the Council. A view of the subject land and its locality was undertaken by the Court in the presence of the parties on 27 October 2011.

The Proposed Development

2. Mr Matthews’ original application was for a shed of about 215 square metres in area in the south-east corner of his allotment. Following the refusal of this application, in the course of the appeal process, he put forward an amended proposal for a shed with an area of 108 square metres. It was agreed by the parties that the appeal should be determined on the basis of this amended proposal. The proposal before the Court, therefore, is for a shed 12 metres long and 9 metres wide with a wall height of 2.7 metres and an overall height of 3.7 metres. The shed is to be sited 2 metres from the eastern boundary of the subject land and 3 metres from its northern boundary. The Appellant proposes to undertake planting along the eastern and southern boundaries of the subject land to screen the development from view from adjoining properties.

The Subject Land and the Locality

3. The subject land at 29 Harold Street, Robe, is formally described as Allotment 10 in Certificate of Title Volume 5462, Folio 540. It is a rectangular residential allotment with a depth of about 88 metres and an area of 1937 square metres. It appears to be fairly level, but with a slight slope towards the rear. There is a dwelling on the land at the western end of the allotment with a frontage to Harold Street. There is also an existing shed or garage, with an area of 72 square metres close to the southern boundary. A small outbuilding of about 10 square metres adjoins this. A sewer easement 3 metres wide runs along the full length of the northern boundary. The Court was told that the existence of this easement was likely to constrain any future subdivision of the land or building along the northern boundary. Apart from the dwelling and the existing shed and outbuilding, the allotment comprises a large open grassed area.
4. Ms Gibbs identified a locality made up of the subject land and its adjoining allotments. She observed that the locality is residential, comprising mainly detached dwellings on large to very large allotments. Ms Gibbs acknowledged, however, that the adjoining allotment to the south accommodates several single-storey flats. Towards the rear of the subject land, along its northern boundary, there are some large sheds on adjoining land, one of which appears to have been substantially extended recently. These sheds are set back a few metres from the boundary of the subject land and are readily visible over the fairly low boundary fence. The Court was also informed that the land to the east of the subject land had been subdivided but is yet to be developed.
5. I was able to observe on the view that the subject land forms part of a pleasant residential area with moderate to high amenity. With an area of almost 2000 square metres, the subject land would be an allotment of rather more than average size in this part of Robe. It is also distinctive in being somewhat narrower than other large allotments in the area and in its considerable depth of 88 metres. The size and unusual dimensions of the subject land are of some relevance in my opinion.

Development Plan Provisions

6. The relevant Development Plan in this matter is the plan for Robe (DC) consolidated on 21 January 2010. The subject land is located within the Residential Zone. Provisions which apply in the zone are set out at pages 94-99 of the Development Plan. Of particular relevance to this matter is Principle of Development Control 19 for the Residential Zone which reads as follows:

19 Garages, carports and other freestanding outbuildings should:
(a) not be of a size or in a location which results in their visual dominance of the dwelling to which they relate or the locality;
(b) not unduly restrict private or shared open space;
(c) not exceed, either singly or in combination, a floor area of 74 square metres per allotment;
(d) not exceed a side wall height of 3.0 metres, nor exceed an overall height of 4.0 metres to the highest point of the building;
(e) have external walls constructed of new pre-colour coated or pre-painted metal, or masonry, timber or compressed fibre cement or other material painted in a muted or earth colour within six months of the building being constructed;
(f) be used for domestic purposes only and in conjunction with a dwelling on the same site; and
(g) not be erected until or unless there exists on the same allotment a dwelling or a valid planning authorisation for the construction of a dwelling.

7. Relevant Council Wide provisions are as follows:
   

Objective 18: Preservation and enhancement of the character and amenity of distinctive residential areas.

Objective 19: Improvement to the amenity of all residential areas.
Principles of Development Control

14. The design and siting of residential development should be in accordance with the character of the locality and constraints imposed by the shape and topography of the site.

...

17. Outbuildings associated with dwellings within townships and settlements should be small in scale and carefully sited so as not to detrimentally affect the character and amenity of the surrounding locality.

...

39. Carports, garages and outbuildings should be setback so as to not diminish the attractiveness of the streetscape or dominate views of the dwelling from the street.

Discussion

8. The Council's case was that the proposed boundary setbacks for the shed were acceptable and would provide an opportunity for landscaping that would assist in screening the development when viewed from adjoining properties. In her written submission, Ms Gibbs stated further that "the height of the building is also acceptable and compatible with the scale of adjoining outbuildings and, to this extent, I do not consider that it will have a negative impact on the character or amenity of the locality".
9. The Council's primary concern, it appeared, was with the failure of the proposed development to comply with Principle of Development Control 19 (c) for the Residential Zone which requires that garages, carports and other freestanding outbuildings should not exceed, either singly or in combination, a floor area of 74 square metres per allotment. In this case the proposed shed would have an area of some 108 square metres. When added to the existing outbuildings on the land, this would give a total floor area of outbuildings of about 180 square metres.
10. It was acknowledged in the Council's submission that the subject land was a large allotment, although no larger than some allotments to the north and south. (As noted earlier, the allotment immediately to the south contains a number of single-storey flats, while there are sheds of substantial size - certainly in excess of 74 square metres - on allotments immediately to the north).
11. The main purpose of Zone Principle 19, according to the Council's submission, is to address what has been a consistent demand for larger sheds "to house boats in particular, but also recreational vehicles and for use as recreation areas as an adjunct to a house, or, in some cases, as a self contained residence for visitors". It was acknowledged that Mr Matthews was not proposing in this case to store a boat or to provide self-contained accommodation. His stated purposes were to store a caravan and to provide a games room. Nevertheless, the Council was concerned that approval of the proposed shed had the potential to weaken the intention of Zone Principle 19 and to create a precedent for similar sized sheds in residential areas at Robe.
12. In his submission, Mr Matthews placed weight on the recent approval by the Council of a large shed - larger, on his assessment than the shed that he was proposing - on land immediately to the north of his allotment. His shed was to be sited on the lowest part of his allotment, would be screened by his proposed tree planting and would have no detrimental effects on the character and amenity of the locality, in his opinion. I agree with this opinion, which, as indicated earlier, was also the opinion of Ms Gibbs. In my planning judgment, the proposed shed will not have any adverse impacts on the locality or on the character of the Residential Zone. It will not offend Council Wide Objectives 18 and 19 or Council Wide Principles 14 and 17.
13. With regard to the Council's primary concern, it is well-established that there is no planning doctrine of precedent (City of Charles Sturt v Hatch 1999 EDLR 495). There may sometimes be circumstances in which it is be appropriate for a relevant authority to consider the cumulative effect of its decisions in influencing community expectations, but a similar development proposal on a different site will always need to be assessed against the provisions of the relevant Development Plan as they apply to that particular site.
14. In Town of Gawler v Impact Investment Corporation Pty Ltd [2007] SASC 356, at para 81, Bleby J set out a list of ten possible grounds which might justify a relevant Planning Authority or this Court departing from a clearly expressed policy in a Development Plan. The seventh point on this list was as follows:
    7. Whether there is something unusual about the Development or the land on which it is to take place which makes the policy inapplicable or inappropriate;
       
15. I think it can reasonably be argued that, in this case, there is something unusual about the land. It is a large, deep allotment with dimensions that are unusual within the locality and its surrounding area. The proposed shed will be at the rear of this allotment, some 75 metres or so from the street. While the combined area of outbuildings on the land will exceed 74 square metres by a considerable amount, the size of the allotment is such that it will still retain a high ratio of open space to built form. On balance, therefore, taking into account the character of existing development in the locality and the adjoining area; the nature of the subject land and the proposal to erect the shed at the rear of the land; and the proposed landscaping, I am of the opinion that the proposed development merits consent.
    
16. Having considered the written submissions which were provided, the relevant provisions of the Development Plan and what I saw on the view, I have concluded that the appeal should be upheld and that Development Plan Consent should be granted to the application to construct the shed which is the subject of this appeal.
17. I intimated my intention to allow the appeal to the parties by memorandum and invited them to submit suggested conditions of consent. Draft conditions were submitted on 20 December 2011 and I have incorporated most of these into my decision below.

Decision

18. The appeal is upheld. Development Plan Consent is granted to Development Application No 822/002/11, being an application for a shed (12 metres by 9 metres) on land at 29 Harold Street, Robe, subject to the following conditions:
    1. The Development shall be undertaken in accordance with the site plan date stamped 2 August 2011 and the elevation plan date stamped 29 November 2011.
    2. The following trees shall be planted in accordance with the site plan dated 2 August 2011 and be established within 3 months from the date of Development Approval:
       • Juniperus Scopulorum, commonly known as Pencil Pines "Blue Arrow", at 1 metre centres on the eastern side of the shed for the length of the shed; and
         
       • Hakea Laurina, commonly known as Pin Cushion Hakeas, on the southern side of the shed at 2.5 metre centres in order to screen views of the shed.
         
    3. No trees are to be planted on the western side of the shed because of the STED easement.
    4. The external surfaces of the building shall be finished in colours which harmonise and blend with the natural landscape and which are of low reflectivity. Where the materials that form the external surfaces are not pre-coloured, they shall be colour finished by painting or other means within 6 months from their erection or fixing.
19. There will be an order accordingly.