AG Building and Developments Pty Ltd v City of Holdfast Bay and Tanti
[2009] SASC 11
•16 January 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
AG BUILDING AND DEVELOPMENTS PTY LTD v CITY OF HOLDFAST BAY AND TANTI
[2009] SASC 11
Judgment of The Honourable Justice Bleby
16 January 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - GENERALLY - CONSIDERATION OF PLANNING SCHEMES
Appeal from Environment, Resources and Development Court – development application to build a residential flat building - appellant’s development application refused by the first respondent on grounds that it failed to comply with the relevant Development Plan – whether the design Principle relating to dwelling density was misinterpreted – misapplication of design Principles in relation to wall height to the height of the proposed building – whether the proposal to excavate the level site to create a basement was contrary to provisions in the Development Plan requiring cutting and filling of sloping land be minimised – whether setback Design Techniques misapplied - whether general Council provisions or more specific Zone provisions should be given greater weight – whether weight should be given to the design precedents of other non-complying developments in the locality – whether design Principles require strict compliance with the technical requirements of a suggested Design Technique – failure to consider the substance of the design Principles – need to consider the development as a whole in deciding compliance of development with Development Plan – Appeal allowed, matter remitted to decide according to law.
Environment, Resources and Development Court 1993 (SA) s 30; Development Regulations 1993 (SA), referred to.
Town of Gawler v Impact Investment Corporation Pty Ltd (2007) 99 SASR 115; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; City of Charles Sturt v Hatch [1999] EDLR 485; City of Mitcham v Terra Equities Pty Ltd (2007) LSJS 416, applied.
Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93; City of Unley v Hall [2002] 123 LGERA 11, considered.
AG BUILDING AND DEVELOPMENTS PTY LTD v CITY OF HOLDFAST BAY AND TANTI
[2009] SASC 11Land and Valuation Division
BLEBY J.
Introduction
Beachfront allotments, particularly in the metropolitan area of Adelaide, are in high demand. It is not surprising that the developer of such an allotment would wish to extract the greatest value possible from any development on the allotment. A developer will, not surprisingly, try to push the boundaries of the Development Plan in favour of extracting such value. As in this case, that may raise conflicts with the interest of neighbours and difficult questions of planning judgment as to whether or not a development, when properly assessed against the development plan, should be approved.
In this case the City of Holdfast Bay (“the Council”) refused the appellant’s application because it was said to be contrary to Council Wide Principles 74, 76, 78 and 101, 106, 118 and Residential (Coastal) Zone Principles 10 and 15 of the Council’s Development Plan. In particular, it was said that the application did not meet the intent of the development plan in relation to:
·Open space;
·Building scale;
·Side and rear setbacks;
·Visual privacy; and
·Streetscape and amenity impact.
The developer appealed to the Environment, Resources and Development Court (“the Environment Court”). The appeal was heard by a Commissioner of that Court who dismissed the appeal. Reference will be made to his reasons for doing so in due course.
From that decision the developer appeals to this Court. It claims to have an appeal as of right on questions of law.[1] To the extent that the appeal involves questions of fact the appellant seeks permission to appeal.[2]
[1] Environment, Resources and Development Court Act 1993 (SA), s 30(2).
[2] Ibid.
The subject land
So far as is relevant I repeat the description of the subject land given by the Commissioner. The land is located at the northern end of the Esplanade, which terminates at its intersection with Holder Road. The adjacent section of the Esplanade is limited to one-way traffic from Holder Road into the Esplanade and southward to Downing Street. The subject land is generally rectangular in shape, a corner site but with an angled western frontage of 17.12 metres to the Esplanade and a secondary, northern frontage to Holder Road of 45.062 metres (both excluding a corner cut-off of 3.94 metres). It has a width of some 19.88 metres and constitutes a site area in the order of 920 square metres.
It is proposed to demolish a single storey dwelling and outbuildings currently erected on the land.
The land is relatively level and is located on top of a remnant dune which rises some 2.5 metres above the level of Downing Street to the south. The land continues to rise marginally to the north and falls away to the south and east. The subject land is perhaps a metre or so above the footpath level of the Esplanade and 0.3-0.5 metres above the level of Holder Road.
There is a right-of-way driveway, 3.66 metres in width, which provides rear vehicle access off Holder Road to three pairs of semi-detached dwellings adjoining to the south. This right-of-way adjoining the eastern boundary of the subject land appears now to be owned by the Council, although it was created as an easement over the subject land. The subject land has very little vegetation in front of the dwelling. However, there are a number of trees and shrubs in the rear yard, including some in the order of 4-6 metres in height and a broad-squat 5 metre high palm tree near to the northern boundary of the land and adjacent to the rear of the dwelling.
The land enjoys fine views over the beach and the coast of Gulf St Vincent.
The proposed development
The proposed development comprises a residential flat building of five apartments and a common gymnasium, occupying the levels above ground, with a fully underground basement car‑park for 11 vehicles. Again, I base my description of the proposal on that articulated by the Commissioner.
The building floor space is to be disposed as follows:
·basement – 11 car spaces, five storage units, waste bins area, exhaust fan and lift/stair access and vehicle ramp;
·ground floor – double width driveway ramping via a double crossover to Holder Road, common gym with courtyard, lobby, stairs and lift shaft, together with one three bedroom plus study apartment with paved terrace and garden to the west and to the north-western and south-eastern corners of the land;
·first floor – two, three bedroom plus study apartments with balconies; and
·second floor – two, three bedroom plus study apartments with balconies.
Other key features of the proposal include:
·contemporary architectural styling with skillion or butterfly roof pitched upwards in an easterly and westerly direction from the centre of the building, together with a rectangular pedestrian entry feature fronting Holder Road;
·numerous balconies on all elevations varying in size and orientation providing a degree of variation to each façade, as well as articulation of the building;
·building setbacks (excluding eaves) between 7.0 metres on the southern side of the building and 9.7 metres on the northern side from the Esplanade frontage, between 2.0 and 4.3 metres from the Holder Road frontage and between 1.0 and 3.2 metres, but predominantly 1.8 metres, from the southern boundary and between 2.0 and 3.7 metres from the eastern boundary adjoining the right-of-way driveway;
·the roof is a significant feature in its own right with deep beam and eave projections beyond the side and front walls of the building and placing the highest part of the roof adjacent to the front boundary 12 metres above the ground floor level, and to the rear eastern boundary, some 11.5 metres above ground floor level;
·the wall height of the entry feature, including the wall/window line on the western and eastern sides to the underside of the skillion roof, is of the order of 11.0 metres above ground floor level;
·private open space in the order of 126 square metres for the ground level apartment in the form of a terrace located at the front of the dwelling and returned to the northern and southern sides; whilst at the upper level, apartments each with access to a number of balconies, the main balcony at the front providing some 30 square metres of area and the remaining balconies adding up to approximately 20 square metres in area, with a minimum of 50 square metres per dwelling; and
·on the evidence of Mr Russell, building articulation is provided in plan form, vertically, horizontally and with respect to materials and colours.
The locality
There was no dispute before me about the extent of the locality determined by the Commissioner. A description of its characteristics is again based on the Commissioner’s description.
Development within the locality is entirely of residential land use and it closely follows the zoning pattern overlaying the land tenure. The Residential Coastal Zone applies for one allotment depth only along the Esplanade both to the north and south, and with the Residential Zone applying to land to the rear or east of that one allotment depth strip. Development along the Esplanade comprises recent multi-storey developments including three semi-detached dwellings, a three storey residential apartment building, and two and three storey detached dwellings. There is also one older style single storey detached dwelling on the Esplanade within the locality.
Except for the single storey dwelling and the single storey form of garaging on the site to the north of the land on the opposite corner of Holder Road, built form along the Esplanade is said to exhibit strong vertical elements brought about by the generally three storey height of the buildings and the “splitting” of certain sites to form semi-detached dwellings, thus resulting in tall, narrow buildings, albeit many being attached.
It would appear that along the Esplanade dwellings seek to maximise sea views by extensive glazing and generous balconies. It was noted that some buildings exhibit moderately dominant undercroft garaging whilst others take access from side streets. It was noted that roof forms vary significantly including domed parapets, gable ends, hipped roofs, “curved” roof forms and flat roofs, and some incorporating rooms.
The northern, Esplanade fronting portion of the locality comprises larger multi and split level dwellings on wider fronted and more elevated allotments. To the east, including one allotment to the north of the subject land, within the Residential Zone, development has, with regard to form and siting, a more traditional suburban character of predominantly single storey detached dwellings, with several of two storeys, semi-detached dwellings and residential flat buildings, exhibiting a wide range of architectural styles, finishes and materials of construction.
The locality exhibits a high level of residential amenity derived more from its coastal location and attributes than the nature and appearance of built form, landscaping or other characteristics of the locality. In the main, residential buildings are well kept and pleasant in appearance, though they exhibit a disparity of architectural styling and themes. There is no homogeneity of built form character, although there is a level of consistency in some elements of siting and the like.
The Commissioner’s decision
The Commissioner noted that the proposal was generally of a type of development envisaged for the Residential (Coastal) Zone, and that given the nature of the zone and its depth, development to the east was not a major constraint but required “sensitivity in the design and transition”. He then addressed the following issues in turn:
·Dwelling density on the site;
·Building height;
·Cutting and filling of the land;
·Building and driveway setbacks;
·Site coverage;
·Overshadowing;
·Overlooking and privacy;
·Car parking;
·Interference with existing views;
·Vegetation retention and enhancement;
·Stormwater management; and
·Energy conservation.
The Commissioner concluded that the proposal was “marginal and borders on non-compliance with the Development Plan guidelines relating to:
·dwelling density;
·site coverage;
·building height;
·cutting and filling of land form;
·side and rear building setbacks;
·driveway setback;
·overshadowing/natural light protection of the adjoining dwelling to the south;
·car parking provision; and
·vegetation enhancement. ”
He noted that overlooking and privacy, stormwater management and energy conservation issues had not been fully dealt with but could be attended to appropriately by further detail and, if necessary, the imposition of conditions on any planning consent. So far as interference with existing views was concerned, he did not consider that a three storey building would exacerbate loss of views from the east to any significantly greater extent than would a single storey dwelling. The Commissioner concluded:
In isolation, each, if not all of the individual shortcomings are not fatal to the proposal, however, collectively and cumulatively they are significant and in my assessment, constitute a sufficient departure from the Development Plan to warrant refusal.
It is necessary first to make some observations about each of the issues in respect of which the Commissioner considered that the development “is marginal and borders on non-compliance” with the Development Plan.
Dwelling density
Grounds 3 and 4 of the Notice of Appeal complain that the Commissioner erred as a matter of law in interpreting Principle of Development and Control No. 4 of the Residential (Coastal) Zone. That principle provides:
4Any site accommodating a detached dwelling should be at least 300 square metres in area, any site accommodating a semi-detached dwelling should be at least 250 square metres in area and any site accommodating a row dwelling, group dwelling or residential flat building should be at least 200 square metres in area.
The Development Regulations 1993 (revoked on 30 August 2008) defined a residential flat building for the purpose of the Regulations and of the Development Plan as meaning “a single building in which there are two or more dwellings, but does not include a semi-detached dwelling, a row dwelling or a group dwelling”. This development was unquestionably a residential flat building.
Read literally, Principle 4 enables a residential flat building containing any number of dwellings to be built on a site as small as 200 square metres. Such a building could not contain 20 or more dwellings as suggested by the Commissioner, at least not in the Residential (Costal) Zone, as Objective 1 of the Zone describes it as a zone “primarily accommodating detached and semi-detached dwellings, row dwellings, group dwellings and residential flat buildings, up to three-storeys in height”.
Principle 4 is, nevertheless, anomalous. Each of the description of dwellings contained in it except “residential flat building” relates to a single dwelling. A residential flat building is a single building but containing any number of dwellings. It is unlikely that the author of the Plan intended that Principle 4 should be interpreted literally so that the greatest possible number of dwellings could be built on the smallest possible site, with no guide as to how many dwellings could be included in such a building.
The Commissioner applied a technique of ascertaining the average site area per dwelling. The area of the land in question was variously estimated at 920 or 928 square metres. If that is divided by 200, it allows some 4.6 dwellings. The Commissioner noted that it was usual to round down unless the fraction was very close to the whole. On that basis the Commissioner concluded that only 4 dwellings would be appropriate on the subject land. He did that by reference to similar area restrictions in other zones and policy areas of the Development Plan. He pointed out that in other zones the guide is expressed as square metres per dwelling or average site area per dwelling. I can see no justification for a transposition of that nature. It could be suggested, with equal justification, that the principle requires a minimum area, including private open space, of 200 square metres for each dwelling. If that were the case, and I am not suggesting that it is, then this development complies in respect of each dwelling.
Given the apparent anomaly in Principle of Development Control No. 4 of the Residential (Coastal) Zone one must do the best one can to ascertain the intention of the authors by reference to the provisions of the Plan as a whole. The introduction to the Zone provisions indicates that the zone is intended to accommodate “a variety of low and medium-density dwelling types”, including “a variety of housing forms including one, two and three-storey dwellings”. Objective 1, as I have mentioned, describes the Zone as primarily accommodating multiple dwellings, including residential flat buildings, “up to three-storeys in height”. That is repeated in Principle of Development Control No.1. Principles 2 and 3 require that development should be designed and located so that the profiles of buildings complement the slope of the land, and so that the development should not have a detrimental effect on the amenity and recreation value of the coastline.
Policy Area 2 of the Residential Foreshore Zone is described in parenthesis as a “3 storey Policy Area”. That Policy Area comprises other parts of the coastal frontage of the council area. Its desired future character “contains a mix of residential development including detached dwellings, semi-detached dwellings, row dwellings and residential flat buildings up to three-storeys (10.5 metres) in height above nature ground level”. Principle 1 of Development Control No. 1 applicable to that area provides that a dwelling on land within that policy area “should have a site area (and in the case of group dwellings and residential flat buildings, an average site of the area per dwelling) of not less than 100 square metres”. The policy area is included in the Residential Foreshore Zone which contemplates a wide range of residential densities including low, medium and high densities “in suitable areas”.[3] Other policy areas in the Zone are described as a “5 storey Policy Area (Policy Area 3) and a 12 storey Policy Area (Policy Area 4). It would appear that Policy Area 2 is intended to accommodate a similar type of residential development as that contemplated for the Residential (Coastal) Zone. However, if the site area provisions of Policy Area 2 were translated to this Zone, it would allow some nine units to be contained in a residential flat building erected on this allotment. With a limitation of three-storeys, such a development would contain a much greater density of dwellings than that which is proposed. I am not suggesting that that is appropriate in this case. Indeed, it indicates the risks and the difficulties of endeavouring to transpose a principle adopted in one part of the Development Plan to another, in order to overcome an apparent anomaly.
[3] Objective 2.
Another possible interpretation of Principle 4 is that the author had in mind a single-story residential flat building, and that the Principle does not address the density of a multiple storey residential flat building.
All this indicates, in my opinion, that the provisions of Principle 4 are far from clear and do not lend themselves to precise interpretation, whether it be the one adopted by the Commissioner or some other interpretation. Whether the development should be the subject of provisional Development Plan consent will turn not on the number of dwellings involved but on compliance with other relevant objectives and principles of the Development Plan.
The Commissioner’s conclusion was that a proposal for four dwellings within this building would “meet the guide” based on the averaging approach that he took. The implication is that he was not quite satisfied that five dwellings would meet the guide as so interpreted.
However, whether four or five units are appropriate for a development on this particular piece of land should probably carry little weight in the overall assessment of the proposal against the Development Plan. What will be of more significant concern, as the respondent admitted in argument, is the size of the building and what the Commissioner called its “built form parameters”. The same building could be designed to accommodate three or four larger dwellings or the five dwellings proposed without significant alteration to the external built form. It is not insignificant that the Council’s Development Assessment Panel Report did not raise the issue of dwelling density.
In the end the Commissioner seems to have taken a similar view. He noted that, of the three planning witnesses, only one suggested that only four dwellings were appropriate on this land. He later noted that various aspects of the design constituted “a reflection of the over-ambitious nature of a number of aspects of the building design, but not necessarily inclusion of a fifth dwelling”.
It follows that, to the extent that the Commissioner may have misinterpreted Principle 4, its seems to have had no effect on his overall decision to dismiss the appeal until he came to his concluding paragraphs where he described the question of dwelling density as “marginal” and “border(ing) on non-compliance”. In my opinion the question of the number of dwellings was an irrelevant and a rather distracting issue.
Site coverage
The area of the site is approximately 920 square metres.
Principle 99 of the Council Wide Principles of Development Control provides:
99The site should provide sufficient space for:
(a) pedestrian and vehicle access and vehicle parking;
(b) storage and clothes drying;
(c) private open space and landscaping; and
(d) front, side and rear boundary setbacks appropriate to the locality.
Design Technique (this technique is ONE WAY of satisfying the above Principle)
99.1 The site coverage7 does not exceed the following:
Site area (m²) Maximum site coverage (%)
<300 55
301 – 450 50
451 – 800 45
>800 40
7 Site coverage represents the proportion of a site covered by the ground floor level of a building including the dwelling, garage, carport, verandahs and free standing residential outbuildings, but excluding unroofed pergolas and balconies. [Original emphasis]
All three planning witnesses in the Environment Court had difficulty in applying the provisions of the suggested design technique to this development. Questions were raised as to whether the site coverage included unroofed balconies, whether the area under a balcony is a verandah, whether one should include the substantial covered area over vehicle access ramps, whether it should include all roofed areas of the site and how one should treat upper level open balconies. Estimates of the planning experts ranged from a coverage of 33% to 59%. The Commissioner noted that, on one basis of calculation the proposal “is compliant or very close to compliant with the 40% guide”, but that on another basis the development “may be said to cover too much of the site, particularly where setback shortfalls… are taken into consideration”. Little indication was given by the Commissioner of the interpretation he preferred other than in his conclusion that the development proposal “is marginal and borders on non-compliance with the Development Plan guidelines relating to (among other things) site coverage”.
Ground 5 of the notice of appeal complains that the Commissioner erred in including in the site coverage the added roof and floor levels above first floor. It alleges that the Commissioner should have held that the relevant definitions required site coverage to be the ground level building footprint expressed as a percentage of the total site.
In my opinion there is no substance to this ground. For a building of this design not to include as site coverage the substantial portion of the open, under‑first‑floor area applied to basement vehicle access is quite artificial. A lay person asked to say how much of the site was covered by the building would almost certainly include the area covered by at least the first floor of the building. One gets the impression that the author of this Design Technique only had in mind a detached dwelling or possibly two semi-detached dwellings.
However, this ground misses the point of Principle 99. In my opinion, it is an attempt to import into the Development Plan a requirement to comply with a level of detail which is not justified. The Commissioner’s reasons and most of the argument on this ground ignored the actual text of Principle 99 and concentrated on the Design Technique by way of example given of one way of satisfying that Principle. It does not purport to be an exclusive way of doing so.
The introduction to the Council Wide provisions of the Development Plan relating to Land Use, Residential provides:
Some of the Principles contained within the Development Plan, where appropriate, are immediately followed by one or more complementary Design Techniques.
The Principles provide qualitative guidance for the design of the new development and express the essential interest of the policy.
Design Techniques provide guidance on how the principle in which it relates may be satisfied, setting the standards or measurements to be achieved. While the Design Technique illustrates one particular way of satisfying the principle to which it relates, it does not represent the ONLY way of satisfying the principle. There may be other ways of satisfying a particular principle in addition to the way identified by the relevant Design Technique. In such cases, alternative solutions should be as good as, or better than, the Design Techniques in terms of satisfying the relevant principle.
In some cases, using design solutions not conforming to the relevant Design Technique may involve an acceptable or beneficial trade-off against other relevant provisions of the Development Plan, or may be warranted due to the to the nature, slope, condition, shape, dimensions or orientation of the subject land.
Alternatively, complying with the Design Technique may nevertheless result in the associated principle not being satisfied due to the particular nature and location of the proposed development relative to surrounding development. In all cases, emphasis should therefore be placed on satisfying the relevant Principle. [Emphasis added]
In this and in other cases, there has been a failure by the Commissioner to observe these requirements.
What is required by Principle 99 is sufficient space for pedestrian and vehicle access and vehicle parking, sufficient space for storage and clothes drying, sufficient space for private open space and landscaping and front, side and rear boundary setbacks appropriate to the locality. Apart from the issue of boundary setbacks to which reference is made below, there is no doubt that the proposed development, as a permitted multi-storey development, complied with the requirements of Principle 99. The fact that the design technique referred to in Principle 99.1 was difficult to apply to this particular building design was a good reason to place little or no weight on it and to concentrate on the substance of Principle 99.
Building height
Principle 8 of the Principles of Development Control relating to the Residential (Coastal) Zone provides that development should not exceed “three-storeys in height” and “10.5 metres high vertical wall height at any point, excluding gables”, those measurements being taken from “existing natural ground level”. Excluding the basement, the development complies with the first and principal requirement. There is no reason why, as it is entirely below ground level, that the basement should be included. The second requirement is in elaboration of and adds detail to the first.
Once again, there are difficulties with the application of that Principle. Although there is a slight slope of the allotment downward from east to west particularly at the south-west corner, the slope is insignificant on that part covered by the proposed building. The Principle does not prescribe a maximum roof height. It does not assist in the calculation of wall height where, as here, there is a skillion roof. The plans show a parapet wall height above ground level of 9.9 metres from which the skillion roof rises to the west to a total building height, including roof-overhang, of approximately 12 metres and to the east, approximately 11.8 metres. There is a central entrance feature parapet on the northern elevation which is approximately 8.2 metres wide and 11 metres in height, and which is higher than roof height for the whole of its width. The Commissioner described the overall roof form as being “lower and of lesser scale than a more traditional one”. The Commissioner concluded:
Given the eclectic mix of roof forms and of 2-3 level buildings in the locality and along the Esplanade, the roof form per se is assessed to be acceptable, however its contribution to bulk, mass and dominance of the building is of concern and is discussed further hereunder.
The Commissioner did not develop that concern other than, in his final conclusion, to say that the development was marginal and borders on non-compliance with Development Plan guidelines relating to (among other things) “building height”.
Grounds 6 and 7 of the notice of appeal complain that the Commissioner erred as a matter of law in failing to identify the definition of wall height for the purpose of Principle 8 of the Residential (Coastal) Zone, and that he erred insofar as the height of the proposed development was of concern.
Principle 8 is not concerned with roof height. The Principle is meant to be a guide, and not a matter of legal obligation. In Town of Gawler v Impact Investment Corporation Pty Ltd[4] I had occasion to refer to a number of cases where that proposition is well established.[5] I continued:
Consistent with the notion of a Development Plan containing relevant objectives and principles rather than stating legal obligations, most principles expressed in this Development Plan, and principle 8 is no exception, are cast in the language of what “should” occur and not what must occur. Even those principles which appear to be cast in mandatory terms are not necessarily mandatory in effect. For example, Principle 28 relating to the Business Zone in this Development Plan provides:
A maximum wall height of 6.0 metres, with an expressed mansard roof element commencing at 5.0 metres and rising to 6.5 metres pitched at 45 degrees.
The principle contains no verb and might appear to be mandatory in effect. In fact, some parts of this Development do not comply with it. The wall heights are slightly higher than 6 m. That does not mean that the development cannot be approved because it fails to comply with that particular principle. Even a principle expressed in that form should be construed as a guide and objective which may be departed from if the departure is relatively insignificant and is desirable to accommodate some particular architectural or engineering feature of the development without detracting from other relevant development objectives and principles.
[4] (2007) 99 SASR 115; [2007] SASC 356.
[5] Ibid 131-132; [74]-[75].
Those observations have direct application to this development. I can see no reason for the Commissioner to express concern about compliance of this development with Principle 8, given the rather striking roof feature and the fact that the overall building height would be likely to be greater if in fact it had a gabled roof design. However, that is not to say that the size and bulk of the building and its overhanging skillion roof are irrelevant in determining whether the development complies with the objectives and principles of the Development Plan.
Cutting and filling of the land
As previously mentioned, the land on which the building is located has minimal slope. The Commissioner noted that the Introduction to the Residential (Coastal) Zone provisions of the Development Plan required that dwellings should be built “in response to the slope on the land in order to minimise the amount of cutting and filling of the natural ground profile”. He also noted that Council Wide Principle of Development Control No. 73 required that the development should “minimise the need for cut and fill”. Principle 257 repeats the same in slightly more detail. He noted that the proposal was to excavate the site by some 2.5 to almost 4 metres in depth over the basement area of some 546 square metres, and that that would provide an efficient use of valuable foreshore land in the provision of parking, storage and rubbish bins out of sight. However, he observed that it is “not hard to conclude” that that aspect of the proposal was against the spirit and intent of the Development Plan.
In my opinion the provisions of the Development Plan relating to excavation and fill are only concerned with sloping sites. They say nothing about the excavation of level sites for the purpose of creating a basement storage space. The Commissioner’s observations about the spirit and intent of the plan were misguided and irrelevant to this aspect of the development. I agree with the appellant that the excavation and basement construction for the purposes envisaged was a positive rather than negative feature of the development.
Building setbacks
The Commissioner found that the setback of the building from the Esplanade was acceptable, as was the setback on the northern side to Holder Road.
In relation to the side and rear setbacks, Principle 10 of the Residential (Coastal) Zone provides that “[t]o ensure reasonable separation between dwellings and to minimise the potential for overshadowing of adjacent buildings”, a three‑storey development or two and three-storey components of the development should be located not less than three metres from the side and rear boundaries. However, Principle 94 of the Council Wide Provisions provides:
94Setbacks from side and rear boundaries should be progressively increased as height of the building increases to:
(a) not cause unreasonable visual impacts on the amenity of adjoining properties;
(b) not cause unreasonable overshadowing of adjoining properties;
(c) maintain adequate natural light to existing and future adjoining dwellings and private open space; and
d) promote energy conservation by maintaining adequate access to winter sunlight to the main ground level of living areas of existing dwellings on adjoining land.
Design Techniques (this technique is ONE WAY of satisfying the above Principle)
94.1Side walls with a maximum height of 3 metres at any point above the natural ground level are set back a minimum of 1 metre.
94.2Side walls with a maximum height of 6 metres at any point above the natural ground level are set back a minimum of 2.5 metres.
94.3Side walls greater in height than 6 metres at any point above the natural ground level are set back 2.5 metres plus the increase in wall height above 6 metres
94.4The rear boundary set-back for single storey buildings (eg having a wall height of less than 3 metres above natural ground level) is not less 4 metres.
94.5The rear boundary set-back for a building of two or more storeys (eg having a wall height more than 3 metres above natural ground level) is not less than 6 metres.
Once again, it will be noted that Principle 94 states the Principle and then gives by way of example a possible, but not the only, way of satisfying the Principle.
In discussing the side and rear set-backs, the Commissioner did not refer to the obvious differences between Principle 10 and Principle 94. He concentrated solely on the provisions of the Design Technique contained in Principle 94. He found that the development departed marginally at first floor level from the guideline with a setback of 1.8 metres compared to the guide of 2.5 metres. It departed “significantly” from the guideline at second floor level, having setbacks of 1.8 and 3.2 metres against a guideline requirement of 7.5 metres. At the rear or eastern end of the building the setback was 2 metres from the boundary of the right-of-way against a guideline at various levels of 4 and 6 metres. However, the Commissioner, rightly in my view, considered that the effect of the right‑of‑way along the eastern boundary made an effective separation of 5.66 metres from the boundary of the property adjoining the right-of-way on the east.
The Commissioner concluded:
The failure to adhere to most setback guidelines to the southern side and rear-eastern side causes visual, overshadowing/natural lighting impacts to adjoining residential properties and is a reflection of the over-ambitious nature of a number of aspects of the building design,….
The Commissioner did not explain how the setback at the eastern end of the property caused visual, overshadowing/natural lighting impacts to any adjoining residential properties. He seems to have been more concerned with technical rather than substantial non-compliance with the guideline contained in Principle 94 without reference to the substance of Principle 94 itself, and he did not even address Zone Principle 10.
On their face, it might appear that there is an inconsistency between the Design Technique contained in Council Wide Principle 94 and Residential (Coastal) Zone Principle 10. However, they must each be read in their respective contexts and against the following general observations of the Court in Telstra Corporation Ltd v Corporation of the City of Mitcham:[6]
The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute: see, for example, St Ann’s College v Corporation of the City of Adelaide [1999] SASC 479. A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expression of goals and guiding principles, rather than the expression of legal mandates: Walkerville Town Corporation v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187 per King CJ approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270-271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. As this Court said in District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 76 SASR 443 at 449, the Plan does not always use expressions in a consistent manner. Thus, in order to determine the intended meaning it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Plan.
[6] (2001) 79 SASR 509, 515-516; [2001] SASC 166, [25], Debelle J, Prior, Nyland, Williams and Martin JJ agreeing.
Where there is some inconsistency or apparent conflict, it is not inappropriate to apply the more specific principles applicable to the particular zone. On appeal to the Full Court in Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd[7] King CJ, with whom O’Loughlin and Prior JJ agreed, expressed general agreement[8] with the views expressed by Jacobs J from whom the appeal was brought in that case[9], King CJ continued:
It is important to notice that reference is to be made to all the principles, both those applying generally and those specific to the relevant zone. Although the specific principles are given precedence in cases of apparent conflict, they are not expressed to prevail absolutely in cases of conflict to the exclusion of the more general principles. Moreover, the precedence, which is given to the specific principles is to be enjoyed only in cases of apparent conflict within the Plan itself between the principles of general application and the detailed policy. The mere fact that a principle is more specific in its application than a principle more generally expressed or of more general application, does not necessarily mean that there is a conflict between those principles. I am not convinced that it has been demonstrated that there is any conflict or apparent conflict which is relevant to the present case. I do not think that there has been any error of principle. The Tribunal clearly gave careful consideration to the Plan. There is no reason to suppose that it was unaware of the expression of principle giving precedence to the specific principles over the principles generally applicable. While it accepted that the proposal was contrary to the specific principles applicable to the zone, it also noted that it was “consistent with other principles of Development Control of general applicability” in the Plan and it considered that, upon planning grounds which it explained by reference to the evidence of expert witnesses whom it accepted, the proposed development warranted consent. This is in principle a perfectly legitimate approach.[10]
[7] (1985) 38 SASR 161.
[8] Ibid 189.
[9] Ibid 181.
[10] Ibid 189.
Principle 94 is one of a large number of principles applying throughout the Council area to a wide variety of residential building forms and situations, from multi-storey residential flat buildings to individual detached dwellings. The Principle and the accompanying Design Technique must be read against that background. In particular, the Design Technique reflects one possible method of applying the Principle. It does not purport to be a minimum requirement. Principle 10 applies only to the Residential (Coastal) Zone. It is a Zone intended to accommodate a variety of low and medium-density dwelling types.[11] Objective 1 of the Zone provides:
Objective 1: A zone primarily accommodating detached and semi-detached dwellings, row dwellings, group dwellings and residential flat buildings, up to three‑storeys in height
[11] Holdfast Bay (City) Development Plan, Residential (Coastal) Zone, introduction, paragraph 2.
Principle 10 applies specifically to two and three-storey developments occurring in this particular Zone and should therefore carry more weight than the provisions of the Design Technique associated with Principle 94. However, in assessing the proposal against the provisions of Principle 10, a Planning Authority cannot ignore the general and substantive provisions of Principle 94. The Commissioner appears to have considered neither Principle 10 nor the substantive provisions of Principle 94.
The appellant also complains that, in considering the adequacy of the setbacks, the Commissioner failed to give any weight to what were described as design precedents of other coastal developments within and beyond the locality which also did not comply with Principle 10 or with the Principle 94 guidelines.
Other than by reference to general concepts of inconsistency with the character and amenity of the locality,[12] there is no warrant in the Development Act or the Development Plan for any substantive departure from the requirements of the Development Plan based on other developments said to be inconsistent in some respect with the Plan. I take the liberty of repeating what I said in City of Charles Sturt v Hatch:[13]
In my opinion it is not relevant that if approval were given for a particular development as a first intrusion, another similar development might, for that reason, be allowed in the same or similar zone. Any similar proposal at some other location will have to be judged against the provisions of the development plan as applicable to the particular site in question. It would be contrary to the requirements of the development plan to approve it because of an earlier approval for a similar activity at a different location. Although there might be some political pressure brought to bear on a planning authority to grant a similar application in some other location as a result of its having approved an earlier application, there is no planning doctrine of precedent as such, namely that because one development has been approved so should another. A bad planning decision is not a reason in itself for making another one which is not consistent with the Development Plan. As has been made clear repeatedly in such cases as City of Mitcham v Freckman [1999] SASC 234 each case must be considered on its own merits by weighing the benefits and detriments of the application by reference to the Development Plan. A judgment must then be made as to whether to grant or refuse development consent.
What may become relevant as a precedent is the effect on the character and amenity of a particular locality of a development which is lawful because it has been approved, but which is one which ought not to have been approved under the development plan. Once lawfully in place, an undesirable development has an inevitable effect on the character and amenity of the locality in question, such as to open the door to other possible developments based on the character and amenity of the locality as then affected by the particular development in question. However, to put the matter in that way is to say no more then that a development which fails to conform with the objectives and principles of the Development Plan ought not to be approved. It is merely an added reason for a planning authority to be vigilant in applying the relevant provisions of the Development Plan to the particular development proposal.
[12] See, for example City of Unley v Hall (2002) 123 LGERA 11, 21; [2002] SASC 143, [49], Besanko J.
[13] [1999] EDLR 485, 495-496; [1999] SASC 523, [31] – [32].
Driveway setback
The proposed double driveway cross-over in Holder Road to the car park access ramp is 6 metres wide in order to accommodate two-way traffic across the footpath and into the basement car park. The Commissioner referred to Council Wide Principle 126 and Design Technique 126.1-3, which envisages a tapered 5 metre wide driveway at the curb line with which this did not comply. However, that would seem to be an unduly rigid application of that principle which is designed not for two-way vehicle access but for a double driveway designed to accommodate single vehicle movement at any one time. The Commissioner also noted that the Principle 126 suggested Design Technique proposed a setback of 1 metre from the eastern property boundary, with which this development did not comply. Once again, the Commissioner’s concerns appear to have been the focus of compliance with the technical requirements, not of the substance of Principle 126 itself, but only of a suggested design technique acknowledged to be one way of satisfying the Principle. There was no consideration of the requirements of the Principle itself and how that might relate to other relevant principles.
Overshadowing
There was substantial evidence directed to the nature and extent of overshadowing caused by the proposed development, particularly in respect of the semi-detached dwelling immediately south of the proposed development. The Commissioner accurately summarised the effect of the relevant principles contained in the Development Plan and the need to minimise overlooking and not to cause unreasonable overshadowing, particularly during winter months. There was some disagreement on the evidence as to the severity of the likely shadowing caused by the development. Overshadowing is, of course, inextricably linked with setback requirements, roof overhang and height of the building. While the planning experts agreed that there would be increased overshadowing and reduction of natural light to the adjacent building to the south, there was disagreement as to the extent of that increase. The Commissioner agreed that the proposed design of the building would cause additional shadowing and some loss of light to the neighbour’s rear elevated deck, and that a reduction in height by approximately one metre and an increase in upper level setback would be capable of minimising that impact. The Commissioner concluded that, “on balance, as an isolated issue, the proposal would… not fail on this ground alone”. Nevertheless, overshadowing was a significant issue and one to which I shall return.
Car Parking
Council Wide Principle of Development Control Number 124 provides:
124 On-site car parking should be provided according to projected needs, taking account of:
(a) the number and size of proposed dwellings;
(b) availability of employment and centre facilities within walking distance of the dwellings;
(c) the anticipated mobility characteristics of the likely occupants of any housing built to meet the needs of particular groups, such as aged and disabled persons;
(d) availability, proximity and frequency of public transport; and
(e) availability of on-street car parking.
but disregarding infrequent, high-visitation events (eg parties).
Design Technique (this technique is ONE WAY of satisfying the above Principle)
124.1Detached, semi-detached and row dwellings are provided with two on-site parking spaces, one of which is covered (the second space can be tandem); or
124.2For group dwellings and residential flat buildings, the number of spaces provided complies with the following (rounded up to the nearest whole number):
Dwelling Size or No. of bedrooms Average Spaces per dwelling
(or rooms capable of being used as a bedroom)
A B
Small (1 bedroom or floor area of <75m2)0.75 1.00
Medium (2 bedrooms or floor area of 75m2 to 130m2) 1.00 1.50
Large (3 + bedrooms or floor ara of >130m2) 1.25 2.0
Add for visitors per dwelling and in multiple-dwelling site 0.25 0.25
Dwelling Location
(A) Residential Activity Node Zone
(B) Any other circumstances
Like other provisions of this Development Plan, the stated Design Technique is only one way of satisfying the Principle. It is not intended to be the only way. Principle 124 itself contemplates the need for some flexibility depending upon local circumstances.
The Commissioner noted that the application of the Design Technique would require 12 spaces, whereas the proposal incorporated only 11. He concluded that there was adequate car parking for dwelling residents, but with a potential shortfall for visitors. However, in view of the degree of shortfall and the characteristics of the locality, that deficiency, in isolation, was not considered to be fatal.
Errors in the Commissioner’s approach
In respect of the matters where the Commissioner considered that the proposal was marginal and bordering on non-compliance with the Development Plan, the Commissioner made a number of errors.
On the issue of dwelling density the Commissioner attempted to construe an anomalous Principle where it was not necessary to do so, and the issue of whether four or five dwellings was appropriate was not really relevant.
In relation to site coverage the Commissioner misapplied Principle 99 by concentrating solely on the detail of a possible way of complying with the Principle which was not relevant to this particular design, rather than attempting to apply the substance of the Principle. However, that is not to say that the extent of site coverage was not a relevant issue to be considered.
In relation to building height the Commissioner allowed himself to be misled by attempting to apply Principle 8 of the Residential (Coastal) Zone Principles to roof height, when in reality it was dealing with wall height, and again attempted an over literal application of that Principle, rather than treating it as a guide. However, overall building and roof height were relevant to the assessment.
The Commissioner’s concern about cutting and filling of the land form was misplaced.
In relation to side and rear building setbacks the Commissioner failed to give any or sufficient consideration to the substantive provisions of Principle 94 or to the very relevant principles contained in Zone Principle 10.
The Commissioner’s concern about cross-over design and setback was really of little import and involved a misapplication of the relevant principle of development control.
The Commissioner’s concern about car parking provision turned solely on the example of Design Technique given in Principle 124 and was thereby wrongly labelled as a “deficiency”. He failed properly to consider the substance of the Principle.
The appellant argued that, because the Commissioner described the proposal as “marginal”, a defect in approach by the Commissioner to any one or more of these issues would or may cause a different result to ensue. However, that depends on the materiality of the error and the significance of the relevant issue to the overall assessment of the development against the provisions of the Development Plan.
I am not prepared to say that a different result would ensue, and it is not possible, from the Commissioner’s reasons, to determine whether that is the case.
The Commissioner’s approach seems to have been entirely quantitative: if the proposal did not comply with a particular guideline or suggested Design Technique, it did not comply, and if there was a sufficient number of individual relatively minor shortcomings (we were not told how many would do), collectively they became significant and constituted a sufficient departure from the Development Plan to warrant refusal. There was little qualitative assessment of the supposed shortcomings against the more general requirements of the relevant Objectives and Principles of the Development Plan
Apart from a passing reference to the relevant Objectives and Principles, there was little attempt by the Commissioner to assess the proposal against some of the more significant Principles of the Development Plan under which the Council considered that the development consent should be refused. I refer in particular to Council Wide Principles 74, 76, 78 and 106. While there was reference to the fact that the proposal included all the architectural features referred to in Principle 15 of the Residential (Coastal) Zone provisions, there was no consideration, as required by that Principle, of whether those features had the effect of reducing the bulk of the development. There was little or no attempt to assess the weight to be given to particular features of non-compliance in their proper context. As Debelle J observed in City of Mitcham v Terra Equities Pty Ltd:[14]
The Commissioner has approached the footing that, if a proposal complies with minimum quantitative standards, it must be approved. That is not necessarily so. Compliance with minimum standards rarely leads to a grant of development consent. Regard must also be had to the qualitative provisions in the Plan when deciding whether it is proper planning to grant development consent.
[14] (2007) 249 LSJS 416, 420; [2007] SASC 244, [13].
Likewise, it does not follow that because some minimum quantitative standards or guidelines are not met, the proposal must be rejected.
I give but one example of the need to consider the development as a whole. I do so by reference to the question of overshadowing. All planning experts recognised a potential problem with respect to overshadowing, particularly to the south in winter months. The question of overshadowing was inextricably linked with issues of building setback requirements, roof form and overhang, building height and site coverage. Although it was not referred to at all by the Commissioner, the difference between ground level of this development and that of the development to the immediate south was also relevant.
Potential overshadowing was compounded in this case by the roof form and overhang because the highest points of the roof are at the extremities of the building, and by the fact that ground level of this building was higher than ground level of the building immediately to the south. That had potential to exacerbate the shading effect of this building to the south, particularly in winter. Differences in ground level also raised other considerations of relative height and dominance.
Overshadowing and its causes also had an effect on privacy considerations. They were compounded by other features of the building design, by the balcony design and by a requirement to consider, for example, Principle 106 relating to visual privacy.
Setback of the building, one of the potential causes of overshadowing, also had an obvious effect on the bulk and extent of the built form when considered along with the building height viewed from the front, exacerbated by the butterfly roof and extensive overhang of the roof at the front. That setback, height and bulk required some assessment of the compatibility of the proposal with existing developments and required consideration of such Principles as Principle 74 (appearance of land and buildings and contribution to the desired future character of the Zone), Principle 76 (whether the building height maintains a compatible scale with adjoining developments) and Principle 78 (whether the visual bulk is reduced or exacerbated by the various features mentioned in that Principle).
These issues were all interlinked. What was needed, and what was lacking, was some assessment of the relevance of any particular supposed departure by reference to other relevant Principles, and an assessment of the effect of the departure on other considerations relevant to that development and its particular location. This, of necessity, required a qualitative assessment which is lacking in the Commissioner’s reasons. It required an assessment not of particular issues in watertight compartments, but rather as part of a single complex planning problem – whether the proposal as a whole should be approved.[15]
[15] See Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93, 102, Jacobs J.
There were therefore defects in the Commissioner’s approach to the assessment of this development against the Council’s Development Plan. I am not able to say what the result should have been had the Commissioner made a proper assessment of the proposal as a whole. It was a type of development that was appropriate for the zone. What was in question was whether that particular form of three-storey development was appropriate for that particular location. That assessment has not yet properly been made by the Commissioner. It is not for this Court to make that planning judgment, and I express no view as to the planning merits of the proposal and whether or not provisional Development Plan consent should be granted. Upon a proper assessment of the proposal the Commissioner may reach the same conclusion. He may reach a different conclusion. If so, he may wish to impose certain conditions. All this is a matter for his planning judgment.
Conclusion
The appeal raises questions of law on the construction of certain parts of the Development Plan and as to the process adopted by the Commissioner. It also raises certain issues of fact or issues of mixed fact and law. To the extent that it raises questions of law, the appeal is as of right. To the extent that it raises issues of fact, it is appropriate to grant permission to appeal, and I do so.
In the circumstances, the appeal is allowed. The order of the Environment Court dismissing the appeal to that Court is set aside. The matter must be remitted to that Court to decide the appeal according to law. Although it is a matter for that Court as to whether any further evidence should be led, I would not anticipate the need for any further substantial evidence.
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