WALSH & ANOR v CITY OF TEA TREE GULLY & ANOR [2012] SAERDC 11 (7 February 2012)

Last Updated: 9 February 2012

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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WALSH & ANOR v CITY OF TEA TREE GULLY & ANOR

[2012] SAERDC 11

Judgment of Commissioner Mosel

7 February 2012

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application for retaining wall, fences, privacy screen and swimming pool - Golden Grove Residential D Zone - consent granted subject to conditions - third party appeal - amended plan submitted - recent consent for a substantial component of the subject matter under appeal considered - principal planning issue defined and assessed against the relevant provisions of the development plan - appeal allowed for the express purpose of amending the conditions of consent.

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

L & S Penley Trading as Penley & Associates and Tantadome Pty Limited v District Council of Murray Bridge 3 (1991) SAPD 64; Holds & Ors v The City of Port Adelaide Enfield & Ors [2011] SASC 226; Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356, considered.

WALSH & ANOR v CITY OF TEA TREE GULLY & ANOR
[2012] SAERDC 11

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Overview

1. This is a third party appeal. Mr and Mrs Walsh (“the Walshes”) are aggrieved by the decision of the City of Tea Tree Gully (“the Council”) to grant Development Plan Consent to a certain development proposed on an adjoining property by Mr and Mrs Colebrook (“the Colebrooks”) and appeal to this Court.
2. The Colebrooks reside in the dwelling situated at number 3 Olde Coach Road, Greenwith (“the subject land”). This is a corner allotment (made so by the crescent shape configuration of Olde Coach Road) that has an area of about 780m2. It is described on Certificate of Title Volume 5706 Folio 633 as Lot 100 Deposited Plan 52651.
3. The eastern (side/rear) boundary of the Colebrooks’ land forms part of a much longer side boundary of the Walshes’ land, (Lot 101, Deposited Plan 52651, Certificate of Title Volume 5706 Folio 634). For convenience, I will refer to this boundary as “the common boundary”. Access to the Walshes’ land and dwelling is from the (un-made) east-west leg of Olde Coach Road.
4. Both parcels of land are on the eastern slope of a valley within which sits a tributary of the Little Para River. The Colebrooks and Walshes have both developed their land to take advantage of very attractive and elevated views to the north and east. The platform for the Colebrooks’ (single storey) house and curtilage has been formed by extensive cut and fill. The platform for the Walshes’ (two storey) house has been formed in much the same way. The relationship between the dwellings is such that the first floor balcony of the Walshes’ dwelling – on the evidence of Mr Walsh – is about 2m above the floor level of the Colebrooks’ dwelling. The eastern margin of the Colebrooks’ land adjacent the common boundary (used generally for outdoor leisure) is elevated between
   0.8-4.5m above the driveway and the (northern) curtilage to the Walshes’ dwelling[1].
5. This relationship, the position and orientation of both dwellings, the uncertain plans for the development of the northern portion of the Walshes’ land and their expressed desire for privacy from the Colebrooks appear to be the main factors behind the institution of this appeal.

The Proposed Development

6. The proposed development, in its original form and appealed against, is depicted in Exhibit R1[2]. It is made up of five main components:

(1) An in-ground swimming pool would be constructed between the dwelling and the common boundary.

(2) A privacy screen – described on the Site Layout Plan as “2100 to 2400 high light weight ‘urban wall’ (rendered finish) pool enclosure screen” – and a 1.2m high glass pool safety fence and gate would be constructed immediately adjacent the pool. The urban wall would be setback from the common boundary at distances varying from about 0.6m-2.4m[3].

(3) The partly completed 1.8m high Colorbond fence on part of the common boundary would be extended to its full length.

(4) A concrete panel retaining wall would be constructed no less than 1m from the common boundary and in line with the Olde Coach Road boundary. At its highest point (the intersection of the two boundaries) it would be 3.1m above existing ground level.

(5) A 1.3m high timber and metal safety fence would be constructed atop the retaining wall.

7. At the commencement of the hearing Mr Henry, counsel for the Colebrooks, submitted amended plans for the proposed development[4]. For convenience, I will use extracts from the statement of evidence prepared by
   Mr Rumsby (an experienced and well qualified planner called to give evidence in the Colebrooks’ case) to detail the amendments[5].

...
The height of the pre-cast concrete retaining wall at the site’s north-eastern corner is reduced by some 600mm to no more than 2.5m in maximum height;
The 1.3m high timber/metal mesh safety fence is to be set marginally behind the retaining wall to allow for the planting of trailing ground covers (Convolvulus sp or similar) behind the retaining wall to cascade down the face of the walls and create a softer landscape edge;
The exposed faces of the pre-case concrete panels will be textured and painted “smoke haze”;
Along the section of the exposed eastern flank of the retaining wall, which is to be inset 1m from the eastern side boundary, ground cover and low bushy reeded plants (Dianella sp and Yucca sp) are to be planted to provide a hardy planted strip at ground level, still enabling personal access for maintenance purposes within the 1m setback strip; and
The eastern side boundary fence is no longer to run the full length of that boundary and is to extend no further than the start of the proposed retaining wall (a total of some 17m in length and involving a 13m extension of the existing [partially] constructed eastern boundary fence). The fence is to be constructed as a 1.8m high colorbond fence to match the existing, but constructed with a consistent graded slope (rather than stepped). This fence is to be returned to meet with the ‘urbanwall’ and provided with a gate for personal access to the 1m landscaped strip.
Changes to the earlier proposed site works have been incorporated by lowering the lower lawned terrace area on the north-eastern corner of subject land. This is achieved by increasing the landscaped batter and extending the stone steps further to the north-east.
...

8. In light of the notation on the Site Layout Plan in respect of the proposed height of the urban wall referred to above, Mr Colebrook, in evidence, confirmed their intention to construct the privacy fence to a height of 2.4m.
9. I have carefully considered the amendments in Exhibit B against those depicted in Exhibit R1 and the leading authorities on the jurisdictional questions that arise from time to time when amended proposals are put before the Court[6]. I am of the view that the amendments are reasonable insofar as they do not change the essential nature of the proposal. It follows that the plans in Exhibit B are permissible amendments.

The Principal Issues and the Development Plan

10. The subject land and the Walshes’ property are both within the Golden Grove Residential D Zone (“the Zone”) in the Council’s Development Plan (“the Plan”)[7]. There being no conflict, in land use terms, between the proposal and the expressed objectives for the Zone, the issues in this appeal devolve to the following question: assessed in the light of all relevant circumstances, would the height, location and appearance of the privacy screen, the retaining wall and the 1.3m high timber and metal fence satisfy to an acceptable extent the provisions that speak variously to those features of a development and, generally, that are directed toward the preservation of visual amenity?
11. I have formed this view having regard to the relevant provisions of the Plan summarised below and taken particular note of a number of factors when I viewed the land in the presence of the parties. The factors include: the position, state of development, orientation of and relationship between the dwellings occupied by the Colebrooks and Walshes, the position, location and amount of private open space available to each of the dwellings, the natural and modified topography within the general vicinity of the subject land and the proximity of the dwellings (and views toward) the Hills Face Zone.
12. At the finalisation of the Walshes’ case, Mr Henry applied to have the proceedings determined without hearing from the respondents pursuant to s 17(4) of the Environment, Resources and Development Court Act 1993. I rejected the application. It was apparent to me, having made the above observations, heard evidence from Mr Walsh and perused the (amended) development proposal under appeal that his assertions about the visual impacts of the proposal warranted the Court receiving expert evidence from Mr Rumsby and Ms Gill and an assessment being undertaken by this Court.
13. Nevertheless there are aspects of Mr Walsh’s case that, in the circumstances, carry little weight in the assessment. It is clear from the evidence of Mr Walsh that he is unhappy with the potential for the Colebrooks to overlook the area in front of his house. Presently that area is developed with a long driveway, a large shed, a gazebo and retaining walls. The Walshes’ plans for this area are uncertain but the construction of a swimming pool and a chicken coup are, apparently, under consideration. This evidence was intended to convey the impression that the position of the Walshes’ dwelling – deep within their land – dictates the use of the front yard for facilities and activities that would otherwise be placed or conducted in the rear of a dwelling. Having viewed the Walshes’ land and listened carefully to the evidence of Mr Walsh about their plans to excise a portion of their front yard by re-establishing a large allotment[8], I find that proposition difficult to accept.
14. These are the essential, but not the only factors, that have led to the Walshes opposing the Colebrooks proposal because, among other things, it does not include a fence on top of the retaining wall of a type that would secure their privacy. This is a misguided attempt by the Walshes’ to secure, by virtue of these proceedings, a particular level of privacy that, so far as I am aware, was not required of the Colebrooks when their dwelling was first assessed and approved by the Council. In those circumstances greater levels of privacy cannot be enforced. As Mr Henry pointed out, if the Walshes are successful in this appeal the present outlook from and thus the level of privacy remains unchanged. For those reasons the argument put by the Walshes to the effect that the proposal must be amended to include a solid fence atop the retaining wall is rejected.
15. The question posed above is resolved by reference to the following provisions of the Plan.

The Zone

Principles of Development Control
...

2. Fencing on the boundary of a public road or public open space which, in relation to dwelling orientation, is sited on the rear or side boundary should:

(a) complement the adjoining and prevailing fencing character within the locality in respect of height, colour and style;
(b) be constructed of brush or pre-coated coloured metal;
(c) comprise dark earthern tones (ie brown or dark grey) where the prevailing fencing character is brush or darker coloured fencing;
(d) comprise lighter colours (ie cream or beige) where these are the prevailing fencing colours (but excluding white, silver or highly reflective colours);
(e) be clad in single material and colour;
(f) avoid sudden changes in height and should gradually follow the natural slope of the land;
(g) avoid visible posts and railing facing roads and public spaces.

3. Privacy screens should be sited and designed to complement adjoining fencing and not be overtly obvious or detract from the existing prevailing fencing character within the locality as viewed from adjoining roads or public open space.

...
Council Wide
...
Objective 5: The amenity of localities not impaired by the appearance of land, buildings and objects.
...

20. Outbuildings, pergolas, fences, retaining walls and other ancillary buildings and structures (such as aerials, external solar panels, air conditioning equipment and tanks) should:

(a) not detract from the appearance or amenity of the locality and streetscape in particular, due to their location, height, bulk, size, enclosure, external materials (zincalume not desired), colours, finishes (highly reflective finishes not desired) or other design features;
(b) be integrated with or complementary to the overall dwelling design and appearance;
(c) be screened from public view wherever possible;
(d) not be of a size or in a location which results in the unreasonable overshadowing of the main living area or private open space area of an adjoining dwelling.
21 Fences proposed to a road boundary should:
(a) have open characteristics if above 1.2 metres in height; and
(b) when adjacent to a secondary frontage in terms of dwelling orientation, have decorative qualities.

22. Retaining walls should be no more than 2 metres in height and sensitively integrated with and complementary to existing development on the site and the adjoining site.

...

173. Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.

...

176. Residential development should be appropriately designed to take account of the climatic and topographic conditions of the site.

...

179. Development should be designed to relate to the slope of the land so that the amount of cut and fill is minimised and the need for retaining walls is avoided, or the height of retaining walls is minimised.

180 Residential buildings should be designed so that:
(a) the amenity and character of the locality is maintained and enhanced;
(b) blank walls are not presented to the street frontage;
(c) the buildings address or have frontage to adjoining public open space;
(d) large expanses of walls are minimised;
(e) there is variety in building height, scale and use of materials;
(f) varied and interesting spaces and volumes are created between the built-form, the front property boundary and adjacent site boundaries;
(g) they, incorporate the use of high quality materials which demonstrate a high quality of finish and architectural design; and
...

189. New development particularly in existing areas should be integrated with the local streetscape. This can be achieved by:

(a) using landscaping that is consistent with existing landscaping in the locality;
(b) having building frontages address the public streetscape;
(c) minimising high level solid fences along street boundaries and forward of the building line; and
(d) new buildings and existing buildings being set-back similar distances from road boundaries.
...
191 Landscaping should be provided to:
(a) add to the attractiveness of the site and the street;
(b) enhance privacy;
(c) screen driveways and parking areas from residents and neighbours;
(d) screen refuse storage areas;
(e) provide shade for parked cars;
(f) reduce the amount of stormwater run-off from the site;
(g) complement existing vegetation on the site and in the locality with similar species of trees and shrubs.
(h) provide protection from sun and wind; and
(i) not unreasonably affect adjacent land by shadow

16. I have also had regard to Principle 4 for the Zone which, inter alia, lists a detached dwelling, outbuilding fence (noting the exception) and retaining wall as complying forms of development subject to the conditions listed in Table TTG/GG/1 and to Council Wide Principles 203 and 210.

Other Considerations

17. The provisions above make it necessary to assess the proposal within the circumstances of its “locality”. The expert witnesses, Mr Rumsby and Ms Gill, the latter being a planner in the employ of and appearing in the case of the Council, each prepared a locality plan for the purposes of their assessment[9]. Of the two, Mr Rumsby’s plan is more extensive and the most appropriate in the circumstances. I have reached that conclusion having regard to Mr Rumsby’s reasoning[10] and, in particular, the following:

... In order to put the proposed works into some perspective with regard to the characteristic nature of site works and retaining undertaken generally within this part of Golden Grove, I have also considered a somewhat wider area within some 150m of the subject land.

18. Mr Rumsby said the following of development within the locality:

Characteristic however throughout the locality, is the use of a single, often large, building floor plates with a predominance of single storey dwellings (rather than split, or multiple level dwellings). With the exception of the dwelling opposite the Olde Coach Road road stub, the building ground floor plates are generally set by the garage levels of dwellings and the achievable driveway grades required to provide safe and convenient vehicle access. Also notable within the wider locality and the Golden Grove development area generally, is the significance of well established and maintained road verges and front garden spaces which are invariably merged without formal fences or any formal delineation of front yards. In general terms there is little by way of evident screen fencing within the public realm along public road reserves, even on corner sites. The two dwellings on the Ewin Street/Olde Coach Road, and Reuben Richardson Road corners, as well as the immediately adjoining site to the south of the subject land, are however notable exceptions.

19. Having made careful observations during the view, I concur with his opinion in this respect as I do with his remarks about the way in which the ground slope/level differences are treated once development on each parcel of land has been completed[11].
20. Also for consideration is the proposed development depicted in Exhibit R2. The proposal therein is for a development generally comprising the components described in items (3), (4) and (5) in para 6 above but which has specifications that are identical to the amendments to the proposal now before the Court and referred to in para 7. Significantly, Exhibit R2 also comprises a decision notification form granting provisional development consent to that proposal subject to the imposition of four conditions. That consent follows a separate development application having been made to the Council. It was determined by the Council to be a Category 1 development.
21. Thus, all but the swimming pool and the surrounding privacy and pool safety fence (items (1) and (2) in para 6) are the subject of a separate and later approval. Of this situation, Mr Henry submitted as follows:

My instructions are if for some reason the current proposal before the court was not to be proceeded with, if Mr Walsh was to succeed in his appeal, my client would simply go ahead and they need to replace the retaining wall that was there and that has been taken away and they will do so in accordance with Exhibit R2. That will then leave them with a situation of what to do with the pool, whether to build a pool and, if so, what to do with the privacy screen but they will certainly be reinstating the retaining wall.

22. Further, on the question of relevance of that consent, Mr Henry referred to the decision in Holds[12] and in particular the following remarks of Kourakis J at para 41:

...
In assessing an application for a new development against the Development Plan, the nature and scope of an existing approval is a relevant consideration. The pre-existing approval is necessarily a relevant consideration because the effect of the proposed development on the locality in which it is to be undertaken cannot sensibly be addressed without considering the existing approval, and the nature of the development which might be constructed pursuant to that approval, even if the new application for a development, or the application for a variation of the existing approval is refused.
...

23. This is a reality that, in my opinion, speaks favourably toward a significant aspect of the proposal under appeal. In absence of the proposal before the Court, in the event that this appeal is upheld, the works described in items (3), (4) and (5) in para 6 has planning authorisation and, subject to obtaining all the consents, may proceed.

Assessment

24. Within the context of the central issue defined earlier, my task is to assess the proposal against the above provisions. For the reasons that follow, this is not a straight forward task. It is rare that a proposal complies in all respects with the relevant provisions. It is necessary therefore to distil from the Plan, and test the subject matter of the appeal against, its policy intent having regard to all of the relevant circumstances and the fact that the Plan is couched in planning goals, objectives and principles and not in terms of legal obligation. It is therefore necessary to weigh those factors that speak for and against the proposal. That task inevitably requires planning judgment which, in turn, can be assisted by the remarks of Bleby J in Impact Investments[13].
25. On its face, certain components of the proposal fail to comply with the explicit terms of Zone Principle 2 and Council Wide Principles 20 and 22. Here I refer to the nature of the fence adjacent Olde Coach Road and the height of the retaining wall. Those components, together with the privacy wall, also enliven assessment against the more subjectively expressed provisions, for example, in Zone Principle 3 and Council Wide Objective 5 and Principles 20 and 173 which seek, inter alia, to avoid detriment to the character or amenity of the locality.
26. At this point it is necessary to say a little about the policy thrust of some of the relevant provisions. Zone Principle 2 and Council Wide Principle 21, by their terms, appear to direct attention to fences on public road boundaries. On one reading, Zone Principle 3 has a similar intent. That is to say it appears to direct its provisions to apply when privacy screens are viewed from public roads. However, this is not to say that the impact of the proposal on the Walshes' property is not the subject of assessment. There are several other general and subjectively expressed provisions, listed above, to be considered. While the policy intent of the former cannot be overlooked, the overarching consideration appears to be whether, in the circumstances, the requisite level of amenity is preserved.
27. The following factors bear upon the decision to confirm, vary or revoke the decision of the Council:
    • The retaining wall, in its amended form, is the subject of a second consent. Mr Henry submitted that the consent will be acted upon in the event that the Walshes’ appeal succeeds. That a major component of the proposal is, in effect a reality, is a factor which speaks strongly in its favour.
    • In any event, I concur with Mr Rumsby’s views about the merits of the retaining wall. Although its design is atypical of those generally in the locality, certain aspects of its features speak in its support:
      • − Because the height of it varies, about one-third of entire length exceeds the height specified in Principle 22.
      • − That part of the retaining wall that exceeds 2m in height is adjacent the commencement of a long driveway that services the Walshes’ dwelling. It is a considerable distance from the dwelling, is not within its direct view and is proximate to open bushland to the north-east.
      • − It is setback from the common boundary about 1m with the intervening space being landscaped.
28. These are features the merits of which must be assessed in context where large changes in levels bought about by topographic differences and modified ground levels are dealt with by retaining walls. In my opinion, the visual impact of the retaining wall is acceptable having regard to all of these circumstances. The extent to which it might conflict with Principle 22 is not such as would warrant rejection:
    • The fence atop the retaining wall varies from the type expressly stated in Zone Principle 2. It is not a solid fence nor could it be said to have decorative qualities. Nonetheless:
      • − in light of the existing landscaping and the configuration of Olde Coach Road it will have limited public exposure; and
      • − being of an open and transparent structure using non reflective materials it will successfully blend with the dominant rural character of the land further to the north and east from which direction the subject land is exposed.
29. Overall the design, height and position of the fence in relation to the Walshes’ dwelling would not conflict with the Plan’s provisions, the general thrust of which is to avoid detriment to the character and amenity of the locality:
    • The height, length and visibility of the privacy screen are the most contentious aspects of the proposal. That the top of the screen will be in excess of 4m above the level of the Walshes’ driveway is an uncontested proposition. Whether its presence would conflict with the relevant provisions to an unacceptable extent is an issue resolved by considering the following:
      • − Principle 3, as I said, appears to be directed, principally, to managing the amenity impacts of a privacy screen from roads or open spaces. In this respect, the proposed screen is well concealed from views from public areas.
      • − The position of the screen is, in general terms, adjacent the Walshes’ driveway, 4-5m forward of their garage and a considerable distance from their front entry and balcony. On my observation, although it is visible from the front yard, it is not placed in such a manner that the Walshes’ private open space nor principal views to the north or east are detrimentally affected. Nor would it be inconsistent with existing fences and structures that – as a consequence of the existing and modified topography – are placed well above the ground level of adjoining dwellings.
      • − The screen is not situated on the common boundary. Instead it is setback 0.6-2.4m from that boundary. Its visual impact will be modified in part by that feature as well as the proposed 1800mm Colorbond fence that will extend along the common boundary adjacent to it.
30. For these principal reasons, the privacy screen (although highly visible, does not detract from the Walshes’ private open space, is not visible from the streetscape and does not cause unreasonable circumstances) satisfies to an adequate extent the provisions of the Plan when they are properly construed. That is a conclusion reinforced by the nature of development that is made permissible near the common boundary by the conditions set out in table TTG/GG/1 that apply to complying developments in the Zone listed in Principle 4.
31. Although not a decisive factor, the expert opinion of Mr Rumsby and
    Ms Gill were not seriously challenged. Both experts identified the relevant provisions and undertook their assessment within the appropriate context.
    Mr Rumsby, in particular, examined in quite some detail the impact of the amended proposal. Both concluded that the consent issued by the Council was warranted.

Decision

32. I have carefully considered the relevant provisions of the Plan, the evidence and submissions, viewed the subject land, the Walshes’ land and the locality generally. It is evident that the proposal, in certain respects, departs from particular provisions of the Plan. However, when the proposal is assessed against the thrust of the Plan’s policy intent and considered in the light of all the existing conditions and circumstances, the balance is in favour of confirming – in general terms – the decision of the Council.
33. I say “in general terms” because the conditions that apply to the present consent under appeal do not take into account the amendments depicted in Exhibit B. Therefore the appropriate course for me to take is to allow the appeal for the express purpose of amending the conditions of the consent of the Council to reflect the amendments.
34. There will be an order to that effect.
    

---

[1] Refer Exhibit B. The bench level of the Colebrooks dwelling is RL 99.3. The Site Layout Plan shows spot levels of RL 98.47 near the Walshes garage (0.83m below) and RL 94.80 near the east-west section of Olde Coach Road (4.5m below).

[2] Exhibit R1, pp 7-10 inclusive.

[3] Measurement estimated by scale from the Site Layout Plan.

[4] Exhibit B.

[5] Exhibit D, p 7.

[6] L & S Penley Trading as Penley & Associates and Tantadome Pty Limited v District Council of Murray Bridge 3 (1991) SAPD 64.

[7] The relevant version of the Plan is dated 7 October 2010.

[8] Lot 50 depicted in Exhibit A1, Document 1.

[9] See Exhibits D and R3 respectively.

[10] Ibid, para 3.12, p 6.

[11] Ibid, para 3.11, p 6.

[12] Holds & Ors v The City of Port Adelaide Enfield & Ors [2011] SASC 226.

[13] Town of Gawler v Impact Investments Corporation Pty Ltd [2007] SASC 356.