AG Building & Developments Pty Ltd v City of Holdfast Bay (No 2) - [2009] SASC 310

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
AG BUILDING & DEVELOPMENTS PTY LTD v CITY OF HOLDFAST BAY AND ANOR (NO 2)
[2009] SASC 310
Judgment of The Honourable Justice Kourakis
30 September 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - REFUSAL AND REASONS FOR REFUSAL
The first respondent refused the appellant's application for approval of a proposed development - appellant's appeal to Environment, Resources and Development Court (ERD Court) dismissed - appellant successfully had ERD Court decision set aside on appeal to Supreme Court - matter remitted to ERD Court - Commissioner of ERD Court again confirmed respondent's refusal to approve proposed development - appellant appeals that decision - whether Commissioner made certain errors of law - whether Commissioner made certain incorrect findings of fact - whether Commissioner's reasons for rejecting certain expert evidence inadequate - whether Commissioner ultimately erred in failing to find that the proposed development ought to be approved.
Held: Commissioner provided sufficient reasons as to why certain expert evidence was not accepted - Commissioner erred in law in some of his findings - none of these findings played a material part in Commissioner's reasoning for confirming the first respondent's refusal of planning approval - therefore errors of law did not affect Commissioner's ultimate conclusion - Commissioner's ultimate conclusion based on a matter of planning judgment which is a question of fact - all findings of fact by Commissioner were supported by the evidence - therefore Commissioner's judgment not attended by sufficient doubt that permission to appeal Commissioner's findings of fact should be given - appeal on grounds of errors of law dismissed and permission to appeal on grounds of incorrect findings of fact refused.
AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor [2009] SASC 11; AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31; AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor [2008] SAERDC 55, considered.

AG BUILDING & DEVELOPMENTS PTY LTD v CITY OF HOLDFAST BAY AND ANOR (NO 2)
[2009] SASC 310
KOURAKIS J
Introduction

The appellant applied to the City of Holdfast Bay (Holdfast Bay) for the approval of a proposed development comprising a residential flat building with five apartments, a common gymnasium and a basement car park. Holdfast Bay refused approval on 26 March 2008.
An appeal brought by the appellant to the Environment, Resources and Development Court (the Environment Court) was dismissed on 19 August 2008 (the first decision). However, the first decision was set aside on appeal by Bleby J in AG Building and Developments Pty Ltd v City of Holdfast Bay & Tanti.[1] Bleby J remitted the matter to the Environment Court to decide the appeal from Holdfast Bay’s refusal conformably with his reasons. On a further hearing of the appellant’s appeal from Holdfast Bay’s refusal, the Environment Court again confirmed the refusal to approve the development. It is an appeal from that decision of the Environment Court given on 9 June 2009[2] which is now before me.
[1] [2009] SASC 11.
[2] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor(No 2) [2009] SAERDC 31.
A description of the subject land and the proposed development can be found in the decision of Bleby J in AG Building.[3] I will refer only to some of its salient features. The development involves the construction of a substantial building with five apartments on the corner of the Esplanade and Holder Road, Brighton. The site of the proposed development slopes down to the south. The southern boundary of the site is elevated above the ground level of the residence immediately to the south. The building is designed with a skillion roof which rises to the west and east from the mid point of the northern and southern walls. The highest point of the skillion roof at the Esplanade face of the building is 12 metres above ground floor level. The roof slopes back to the wall height of about 9.9 metres at the mid point of the southern and northern walls but rises again to 11.8 metres on the eastern face of the building. The space between the roofline and the western wall of the building, which faces the Esplanade, is glazed; the space above the eastern wall is covered with texture coated panels. At the mid point of the northern wall where the two slopes of the skillion roof meet, an 8 metre wide entry façade, facing Holder Road to the north, rises above the height of the walls and roof at that point to a height of about 11 metres.
[3] [2009] SASC 11 at [5]-[11].
Immediately to the south of the subject land is the two storey residence of Mr Tanti, the second respondent. The setback of the proposed development from the southern boundary is predominantly 1.8 metres. The setback increases to about 3.2 metres for a distance of several metres near the Esplanade end of the southern wall on all floors. However on the first and second floors the balconies overlooking the Esplanade fan out to within 1 metre of the southern boundary.
Bleby J found that the Commissioner had erred in his assessment of the proposed development against the provisions of the Development Plan in a number of respects including the provisions regulating dwelling density, site coverage, cutback and car parking. On the issue of building height Bleby J held that the Commissioner erred in applying the quantitative height prescriptions of the Development Plan to the roof height instead of the wall height. Bleby J found that the development complied with the height requirement of the Principles of Development Control relating to the Residential (Coastal) Zone in that it neither exceeded the three storey limit nor the limit of 10.5 metres vertical wall height. As to setbacks Bleby J found that the Commissioner erred in failing to have regard to the substantive provisions and concentrating instead on the design techniques at the foot of the provisions, which were no more than suggestions as to how the substantive requirements of the provisions might be met.
In remitting the matter to the Environment Court Bleby J made the following observations on how the assessment of the development might properly proceed:
79The 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.
80Apart 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:
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.
81Likewise, it does not follow that because some minimum quantitative standards or guidelines are not met, the proposal must be rejected.
82I 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.
83Potential 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.
84Overshadowing 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.
85Setback 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).
86These 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.[4] (footnotes omitted)
[4] AG Building and Developments Pty Ltd v City of Holdfast Bay & Tanti [2009] SASC 11 at [79]-[86].
The further hearing
On the further hearing of the appeal to the Environment Court the Commissioner again confirmed Holdfast Bay’s decision not to approve the development. The Commissioner concluded:
22Whilst it is acknowledged that the proposal is generally envisaged in the RCoZ in terms of land use, dwelling type, three storey form and maximising opportunities for coastal living for five households and several other design and practical features are acceptable and meet the Plan provisions (and are a positive that I have weighed up), the particular design is assessed to be insufficiently compatible or an acceptable fit for the site and the locality context within the zoning framework.
23In essence, the proposal is a large, relatively bulky, intensive building development with large mass, likely to exacerbate overshadowing/loss of light to the adjoining property to the south, with insufficient setback, particularly at upper levels to its southern boundary causing amenity and other impacts (overshadowing and loss of light), to that adjoining dwelling, its rear decking and private open space.
24In addition, its roof shape and form whilst acceptable as an element per se, unfortunately exacerbates the perception of scale and bulk of the building with its upward tilting skillion roofing uplifting to both the eastern and western ends and with large overhangs to wall sides; and the relative absence of significant areas for deep planting to achieve even mid-size or preferably taller tree planting to offset the scale, bulk and dominance of this building on what is an elevated corner site. Building, paving and other driveway areas are also extensive limiting planting opportunities.[5]
[5] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31.
The appeal
The appellant appeals on the following grounds:
1The learned Commissioner erred in failing to find that the proposed development ought to be approved.
2The learned Commissioner erred in holding that the Council Wide Principle of Development Control (‘CW PDC’) 99 of the Development Plan Holdfast Bay (City) (‘Development Plan’) relating to site coverage was not complied with …
3The learned Commissioner erred in holding that the building height was not of compatible scale to the adjacent development in breach of CW PDC 76 …
4The learned Commissioner erred in placing too much weight on his perception of the ‘bulk’ of the development, when development of the kind and scale proposed is appropriate for the Residential (Coastal Zone). As the building complied with the relevant provisions of the Development Plan relating to height, density, and site coverage, there was no warrant to refuse consent based upon a subjective perception of ‘bulk’.
5In assessing the topic of overshadowing the learned Commissioner failed to have sufficient regard to the wording of CW PDC 11 that referred to siting the development so as not to create significant overshadowing (so far as is possible) in that inadequate weight was given to the words ‘create’ and ‘significant’ and the learned Commissioner did not take into account:
a. The evidence that the existing building already caused overshadowing, and that there was no significant difference in overshadowing between the proposed development and the existing development;
b. The evidence that a building complying with the quantitative relevant set back figures in the design techniques would create substantially the same level of overshadowing as the proposed development.
6The findings in paragraphs 15 to 17 relating to overshadowing were against the evidence. Alternatively the learned Commissioner erred in rejecting the appellant’s evidence on the topic (expert report of Malcolm Rolfe including shadow diagrams) and in failing to give reasons as to why that evidence was rejected.
7The finding as to overlooking at paragraph 8 of the learned Commissioner’s reasons were inconsistent with the Commissioner’s findings at paragraph 62 of his decision of 19 August 2008 … Procedural fairness was not accorded to the appellant as there was no suggestion from the Commissioner during the course of argument that the question of overlooking was to be revisited and his earlier finding departed from.
8The learned Commissioner erred in not taking into account the opinion of Andrew Russell, a qualified architect, on the topic of articulation or alternatively in giving reasons why that evidence was rejected in making the findings at paragraph 19 of his reasons.
9The learned Commissioner did not provide sufficient reasons for his findings at paragraph 21 of his judgment, namely he did not explain how the profile of the building did not complement the slope of the land (the land was largely flat); how it did not preserve the amenity of the coastline; and how the findings as to wall height and set backs therein could sit with the reasons of the Honourable Justice Bleby on those topics. Alternatively the said findings were against the evidence.
10At paragraph 24 of the Commissioner’s reasons the learned Commissioner erred in his approach to the roof design by making a judgment based on architectural merit as opposed to planning merit.
For reasons that I explain below I would dismiss the appeal. In short even though the appellant has made good grounds 2, 3, 7 and 9 of the Notice of Appeal, the errors complained of do not materially affect the Commissioner’s conclusion. Grounds 1, 4, 5, 6, 8 and 10 do go to the foundations of the decision but in my view the Commissioner has not erred in his reasoning on those matters; at the very least the alleged errors of fact are not such as to attract a grant of permission to appeal.
The Development Plan
The following Council Wide Principles of Development Control (CWPDC) are relevant to the determination of this appeal:
11Development should be sited as far as is possible in a manner which will not create significant overshadowing of the windows of an adjacent dwelling or any outdoor living area with an adjacent dwelling, so that sunlight is available to the northern façade of any adjacent existing development for at least two hours between 9:00am and 3:00pm on 21 June. To ensure that the above criteria can be met, a shadow diagram should be submitted with the development application showing the position of shadows on 21 June from any new development and from any adjacent development where the shadows impinge on the development site.
76Building height should maintain a compatible scale with adjacent development.
78The visual bulk of buildings adjacent to street frontages and adjoining private open spaces of neighbouring allotments should be reduced through design methods such as:
(a)colour, building materials, detailing and articulation; and
(b)     setback upper storey parts of buildings from neighbouring private open space.
92Dwellings should be set back from the allotment or site boundaries to:
(a)     contribute to and enhance attractive existing or desired (by zone and policy provisions) streetscape character;
(b)     provide adequate visual privacy by separating habitable rooms from pedestrian and vehicle movement;
(c)     be similar to, or compatible with, set-backs of buildings on adjoining land;
(d)     not dominate the streetscape character of the locality; and
(e)     in the case of setbacks to secondary roads, have regard to the setbacks of existing dwellings.
Design Technique (this technique is ONE WAY of satisfying the above Principle)
…
Secondary Street Frontages in Established Areas
92.2Walls having a height of up to 3 metres above natural ground level are setback (excluding verandah, porch, etc) 2 metres to the secondary street frontage; and
92.3Walls having a height or aggregate wall height more than 3 metres above natural ground level are setback (excluding verandah, porch etc) 4 metres to the secondary street frontage.
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 dwellings on adjoining land.
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.
115Landscaping should:
…
(b)     enhance attractive site attributes;
…
(d)     complement built form (ie taller and dense plantings against taller and bulky building components);
…
(l)    provide a buffer (incorporating trees) along side and rear allotment and site boundaries;
…
(n)     incorporate the planting of mature vegetation;
…
(q)     have regard to the tolerance of selected species to prevailing salt-laden winds.

The objectives and principles of Development Control for the Residential (Coastal) Zone (CZPDC) that are apposite are the following:
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.
Objective 2. Development which is designed and located so that the profiles of buildings complement the slope of the land.
Objective 3. Preservation of the amenity and recreation value of the coastline.
Principles
1.Development undertaken in the Residential (Coastal) Zone should be, primarily, detached and semi-detached dwellings, row dwellings, group dwellings and residential flat buildings, up to three-storeys in height.
2.Development should be designed and located so that the profiles of buildings complement the slope of the land.
3.Development should not have a detrimental effect on the amenity and recreation value of the coastline.
8.Development should not exceed the following limits above existing natural ground level:
(a)three storeys in height; and
(b)10.5 metres high vertical wall height at any point, excluding gables.
10To ensure a reasonable separation between dwellings and to minimise the potential for overshadowing of adjacent dwellings, the following boundary set-backs, as illustrated in Figure 9, Table HoB/3, apply:
(a)     single-storey development, or single-storey components of a development, should be located no less than one metre from side (unless located on the boundary) and rear boundaries;
(b)     two and three-storey development, or two and three storey components of development, should be located no less than three metres from side and rear boundaries.
14.     A variety of dwelling styles and forms are encouraged.
15.Large two and three-storey residential developments should incorporate architectural features which reduce the bulk of the development and add visual interest, such as:
(a)variations in height, roof form, colour and materials;
(b)the provision of balconies and porticos; and
(c)façade articulation.
16.To ensure that development does not create a continuous built-form along The Esplanade, the western elevation of any development greater than one-storey in height located on The Esplanade should not extend for a distance greater than 90 percent of the allotment frontage, and in any event, should not create a continuous façade of more than 20 metres in length, as illustrated in Figure 7, Table HoB/3. Space or spaces used to break up facades of more than 20 metres in length should constitute not less than 10 percent of the total width of the façade.
17.The frontage of a dwelling site, other than the driveway area should be landscaped. Landscaping may comprise a combination of vegetation and paved surfaces, however paving should not constitute more than half of the area between the site frontage and the forward most building alignment of a dwelling, and driveway width should not exceed 30 percent of the frontage of the site, as illustrated in Figure 3, Table HoB/3.
Overshadowing – Grounds 5 - 6
It is convenient to consider first those grounds of appeal which challenge the reasons given in [22] - [24] of the judgment below because it is in those paragraphs that the essential reasoning and ultimate conclusions of the Commissioner are expressed.
The Commissioner’s consideration of the overshadowing issue is challenged on two grounds. Ground five complains that the applicable provisions were misconstrued and therefore raises a question of law; ground six complains of a wrong finding of fact and therefore requires leave.
The appellant submits that a development does “not create insignificant overshadowing” for the purposes of CWPDC 11, and does “not cause unreasonable overshadowing” for the purposes of CWPDC 94(b), if it does not add to any existing overshadowing from the site. That submission should be rejected, at least where the proposed development involves the demolition of an existing structure and its replacement by another. The objectives and principles of Development Plans are calculated to achieve the optimum built environment for the zones to which they apply. It will often be the case, because of changing standards, that existing buildings fail to meet contemporary benchmarks set by a Development Plan. The purpose of a Development Plan will be frustrated if its provisions are read down by reference to historical conditions. True it is that there is no compulsion to demolish or alter existing structures and their adverse effects on the environment must therefore continue to be tolerated; but those who choose to undertake a development must do so consistently with contemporary standards.
In this context it can properly be said that a development which replaces one building with another both “causes” and “creates” overshadowing, even if it creates no more overshadowing than the development it replaces. That construction of the overshadowing provisions is consistent with the ordinary meaning of the text and advances the objects of the Development Plan.
On the other hand I accept the appellant’s submission that less weight should be given to the overshadowing caused by a development if it causes no more overshadowing than a development which complied with the prescriptive quantitative provisions of the Development Plan which are calculated to minimise that overshadowing; the prescription of setback distance can be found in the design technique annotation to CWPDC 92 and in CZPDC 10, itself.[6] However in this case the Commissioner did find that the proposed development created more overshadowing and obstructed more natural light than a development which complied with the setback guidelines. The Commissioner observed that the height of the roof and its overhang added to the overshadowing resulting from the failure to meet the setback guidelines. Ground six challenges those factual findings.
[6] An objective measure of a different kind is applied by CWPDC 11 which prescribes a minimum number of hours of sunlight on the winter solstice; however the evidence in this matter does not allow any conclusion to be reached on whether the proposed development satisfies that principle.
The appellant’s contention is that there is such a dearth of evidence to support the Commissioner’s finding that leave should be given to challenge it on appeal. It is necessary therefore to review the evidence. The appellant substantially relied on the report of Marcus Rolfe, a planning consultant, dated 23 June 2008. Mr Rolfe reported as follows:
While I acknowledge that the proposed development will result in overshadowing of the adjoining property to the south in mid-winter, I am of the opinion that the proposed development will not create significant overshadowing ‘as far as possible’ on the basis that;
·The existing development and vegetation on the subject site already creates significant overshadowing of the adjoining property to the south in mid-winter;
·Overshadowing of the adjoining property to the south is almost unavoidable from the subject site given the orientation and relative heights of these allotments; and
·The development which complies with the quantitative side boundary setback and height guidelines in the development plan would have a similar overshadowing impact on the adjoining properties to the south.
However Mr Rolfe made the following concession in cross-examination:
There would certainly be a period, I would expect, in maybe Spring and Autumn where the difference would be improved by following the design technique, yes.
Mr Rolfe repeated that view a little later when he said:
If you had something that met the design technique in terms of side setbacks, at some point it would overshadow the adjoining side – sorry, the proposed development would overshadow the adjoining site sooner than a proposal that met the design techniques in terms of side setbacks.
Before the Commissioner the appellant also relied on the evidence of an architect Andrew Russell. Mr Russell’s evidence was that a building with a three metre setback and with a 10.5 metre wall height would leave the balcony on the northern side of Mr Tanti’s residence without any sun before 9:00am and after 12 noon on the day of the winter solstice. Mr Russell’s opinion was based on shadow diagrams which he drew and which were received as Exhibit A-6. It appears from those diagrams, and Mr Russell testified, that he had assumed a total building height including the roof of 10.5 metres. To that extent he may have understated the overshadowing which would be caused by a building which complied with the quantitative aspects of the height and setback provisions of the Development Plan. However he accepted that his calculations were based on the arc of the sun on 21 June and on no other day. He gave no opinion, by extrapolating from those calculations, on the difference between a compliant building and the proposed development on the other 364 days of the year.
Ms Nolan, a town planner engaged by Holdfast Bay, reported on 23 June 2008 that she doubted that compliance with the height and setback requirements of the Development Plan would result in any appreciable improvement to the overshadowing caused by the proposed development. In her evidence Ms Nolan expressed a slightly different opinion when asked to comment on the diagrams in Exhibit A-6:
All they do is confirm in my mind what I would have expected to have happened, but didn’t have information before me and that is that on 21 June I would expect Mr Tanti’s courtyard and possibly other – sorry balcony to the rear and possibly others to be overshadowed, but that at some point either side of 21 June that degree of overshadowing would be lessened, depending upon the form of the building on the adjoining land. I couldn’t tell prior how much overshadowing there would be, but I had expected that it would be less had the building complied with the setback and height requirements of the Development Plan.
In the hearing before the Commissioner, counsel for Mr Tanti called the planning consultant David Hutchison. He considered the overshadowing that would be caused by both the proposed development and a conforming development on 21 June, 21 July, 21 August and 21 September. On the basis of those assessments Mr Hutchison concluded:
Well it is pretty evident that with the what I will term the compliant development, that they will start to receive some light to those rear living areas sooner with the compliant development than they would have with the proposed development.
It appears from Mr Hutchison’s evidence and the shadow diagrams drawn by him, received as Exhibit D, that on 21 June overshadowing caused by the proposed development and a compliant development would be much the same. However Mr Hutchison calculated that after the winter solstice the northern aspects of Mr Tanti’s residence would receive direct sunlight about 18 days earlier if the development on the subject site was compliant. Approaching the winter solstice those aspects would receive sunlight for a further 18 days during autumn. For the purposes of determining the overshadowing caused by the proposed development Mr Hutchison assumed a particular point along its southern wall where the roofline rises to a height of 10.5 metres above the ground floor baseline from which Mr Hutchison made his calculations. He also worked on the basis that the ground floor baseline of Mr Tanti’s residence was about 0.8 metres lower than the ground floor level of the proposed development. At that point the height of the skillion roof of the proposed development is at its lowest. Mr Hutchison assumed a roofline for the “compliant” development of 10.5 metres. The effect of that assumption may have been to understate the overshadowing that a compliant development would cause because a gable roof on a compliant development would rise above the maximum wall height of 10.5 metres. However, as Mr Hutchison himself pointed out, a gable roof could be expected to slope downwards as it approached the southern boundary and his assumption might therefore still be valid. Moreover it cannot be known what roofline a compliant development might have. Mr Hutchison gave this evidence:
Q:You accept on your compliant development, there could, indeed, be a roof form that could still be compliant development above that roof form.
A:Absolutely, yes.
Q:And therefore could create an additional shadow to the one your showing.
A:It could do, but then you’ve got to relate it back to the Development Plan. Its very well to say you’ve got a pitched roof on there that goes back 10 metres, but that doesn’t meet the provisions of the plan that seek development be designed in such a way to minimise overshadowing.
It is difficult therefore to estimate with any precision the difference in overshadowing between the proposed development and a compliant development. Mr Hutchison also agreed that his calculations with respect to Mr Tanti’s development took into account the overhanging eaves and that if they were reduced the number of days of precluded sunlight would be reduced.
On that evidence the Commissioner made the following findings on the issue of overshadowing:
15Whilst difficult to quantify exactly, the evidence of Mr Hutchison and Ms Nolan (confirmed by my general assessment), was that a greater degree of overshadowing and loss of natural light, more so in the winter month (as is usual given Adelaide’s latitude) would arise from the proposal upon the adjoining dwelling, rear deck and private open space – refer Exhibit A2 photos, Nos. 19-21, than was currently the case, or would be the case if the proposed building met the side setback guidelines and its height/roof overhang to the side were of lesser amounts.
16I assessed that it could be further minimised and become of an acceptable level if the upper second floor level and roof and overhang setbacks were increased (to that set out in the numerical guide as a minimum) and if the overall height were to be reduced by about 1 metre.[7]
[7] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31 at [15]-[16].
In my view there is evidence, including the concession of Mr Rolfe, which supports the Commissioner’s finding. Notwithstanding the valid criticisms of some of the assumptions on which Mr Hutchison’s opinion was based I am far from satisfied that the Commissioner erred. There is certainly no reason to give permission to appeal the Commissioner’s factual finding which is based both on the expert evidence which he heard, and his own assessment of the shadows that would be cast by the proposed development and possible alternatives.
Planning Judgments – Building bulk and articulation - Grounds 4, 8, 10
The Commissioner addressed the qualitative aspects of the visual bulk of the proposed development, in this way:
As noted by Bleby J (SASC 11, para 85) the southern side boundary building setback (particularly at first and second floor levels), along with the building height (including roof form and extensive overhang), viewed from the street (Esplanade or Holder Street), have an obvious effect on the perception of building bulk. In my assessment, that effect is to increase perceived bulk taking into account both building articulation and the degree/absence of mid or taller tree planting (only shrubs or ground cover are proposed), to any sides. Articulation provides a breaking up of potentially amorphous, single plane surfaces, particularly in this case with the introduction of alignment variations, material variations and the introduction of shadow bands or segments. However, as evidenced on the elevations and the perspectives (Exhibit A1), it is only of limited success given the sheer size, building mass volume (1185 square metres floor area excluding basement and balconies), and form (with large balconies and exaggerated roof overhangs and limited side setbacks), of the building design.[8]
[8] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31 at [19].
By ground 4 of his appeal the appellant contends that, because the proposed development meets quantitative prescriptions with respect to developments in the Residential Coastal Zone, approval should not have been refused on the basis of the “subjective perception of overall bulk” arising out of the CWPDC 78.
CWPDC 78 requires planning authorities and the Environment Court on appeal to make a planning judgment. That judgment involves an evaluation of matters of fact and degree. To pejoratively describe that judgment as “subjective” does not in any way assist the relevant legal enquiry. The terms of the Act and the Development Plans made under it require such planning judgments to be made. It may be accepted that a range of different views may be held on such matters and that judgments of fact and degree may be influenced by subjective preferences. However, it is the duty of the planning authorities to apply their judgment to these matters by reference to the considerations reflected in the principles and objectives of the Development Plans, and their assessments of the appearance and effect of the proposed development in the locality in which it is to be undertaken. The judgments they make are judgments on questions of fact. On an appeal against a question of fact, an appeal court can only interfere if that judgment is shown to be wrong having regard to, in this case, the specialist nature of the Environment Court. Indeed, before the merits of the planning decision can be addressed, permission to appeal must be granted.
The issue is, again, whether the conclusion of fact reached by the Commissioner is so obviously unsupported by the evidence that permission to appeal it should be given. My own assessment is that the visual bulk of the proposed development is significantly greater than the apartments to the south, and Mr Tanti’s dwelling in particular, because of the building features referred to by the Commissioner. In my view the building would make a significantly stronger architectural statement than the buildings around it and would tend to dominate its immediate environment. On the other hand, I tend to think that the development would, overall, make a positive contribution to the built environment of the locality. I may not have refused approval if the planning judgment was mine to exercise at first instance. However, that is not the relevant question. Permission to appeal to this Court should not be given simply to substitute a different, and less experienced, evaluation of the qualitative planning merits of a proposed development for the assessment made by the Environment Court.
In my view the assessment by the Environment Court of the proposed development against CWPDC 78 was open to it. I am not satisfied that it was wrong or attended by sufficient doubt to warrant a grant of permission to appeal.
The appellant complains, by ground 8, that the Commissioner should have accepted the evidence of Mr Russell concerning the design features of the development that provide significant articulation and thereby reduce the visual bulk of the development. In his report Mr Russell explained that the proposed development was not a “single monolithic architectural form” but was a structure comprising “three primary forms” which provided a “high degree of articulation in the overall architectural composition”. In this respect Mr Russell’s conclusion in his report was that:
The proposed development embraces a high degree of built form management, integrated proportioning systems and various techniques to create a highly articulated and well proportioned structure that integrates well into the streetscape setting and provides complimentary relationships with adjacent development.

Mr Russell expanded on his opinion in evidence and maintained his opinion notwithstanding the contrary views of Ms Nolan and Mr Hutchison to which I am about to refer.
Ms Nolan was of the opinion that a number of features of the development collectively “result in a development of such bulk and scale so as to fail to exhibit the characteristics of development sought by the Development Plan and appropriate on the subject land. She concluded:
Whilst I take no issue with the form of the building per se, I do not believe its overall height and bulk can sit comfortably on this site.
On the other hand Mr Rolfe in his evidence was asked to comment on Ms Nolan’s report and said:
I don’t share her concerns in that regard. I see this as being a fairly modern piece of architecture, not dissimilar to the building we saw at 96 the Esplanade which is the four storey residential flat building. There appears to be the use of – the appropriate use of contemporary building materials, a mix of colours, as evidenced on the perspective, even though they are from the other side, that I think mean that this building would be quite attractive in this particular locality.
The planning consultant Mr Hutchison was of the view that the features of the development, in combination, resulted
[i]n a building that lacks the design elements sought in Zone Principle 15 and which fails to address those parts of the Council Wide section of the Plan that seek compatibility with prevailing character … more particularly the prevailing character within the Residential (Coastal) Zone.
Mr Hutchison also disagreed with Mr Russell’s opinion that the balconies provided much articulation. He testified that:
I have some concerns, as I’ve indicated in my statement, about the way in which current form for the building projects the building height outwards to those public spaces, particularly along the Esplanade; that increases the bulk and form and mass of the building at that frontage.
On the question of landscaping, Mr Hutchison said in his evidence:
Yes. As I said, I am not so fussed about the front and Holder Street elevations. I guess there is a personal view that they could be done better to break up the form of the building more than is provided. There is just and absolute lack of landscaping on site that might contribute to integrating the building a little bit and I’m missing some of those visual elements of the development and certainly the vast majority of the species that are provided there, there is really no detail but they are only sort of 2 to 3m high. I think the tosprin is probably the larger of the species. It depends what sort of pittosporum they are putting in. There is a wide variety of them. There has not been a great deal of effort put into landscaping.
The appellant also complains by ground 10 that the Commissioner in [24] of his reasons, at least in part, dismissed the appeal to him on the basis of his own judgment about the “architectural merit” of the roof design of the proposed development.
In his first judgment the Commissioner referred to the roof in these terms:
The skillion roof overall is of a lower and lesser scale than a traditional gable roof but its taller elements are placed to the Esplanade frontage and to the rear eastern elevation and the impression of scale and degree of dominance are greater than might otherwise be expected.[9]
[9] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor [2008] SAERDC 55 at [41].
When the matter was remitted to the Environment Court, the Commissioner referred to the “somewhat top heavy upper level and roof form”.[10]
[10] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor(No 2) [2009] SAERDC 31 at [21].
The evidence of Mr Rolfe and Mr Russell was that the roof was “light” in appearance. However, Mr Hutchison disagreed and testified that his opinion was that the skillion roof “projects the bulk of the building forward to the public spaces”. That evidence together with the other evidence in the case, some of which I have mentioned, supports the Commissioner’s finding that the design of the roof contributed to the visual bulk of the building.
The reasons for dismissing the appeal on grounds 8 and 10, insofar as they raise questions of fact, are the same. It was a matter for the Commissioner to assess the competing evidence about the visual bulk and degree of articulation of the proposed development. The Commissioner had the advantage of hearing the evidence. The Environment Court is a specialist tribunal established to make planning judgments on such matters. I am not satisfied that the Commissioner’s judgment is attended by sufficient doubt that permission to appeal should be given, or that permission to appeal should be given for any other reason.
As to the question of law, also raised by ground 8, concerning the adequacy of the Commissioner’s reasons, it is plain that Mr Russell’s opinion was not accepted because the Commissioner preferred the views of Ms Nolan and Mr Hutchison. The Commissioner described the features which, in his view, rendered the visual bulk of the building unacceptable. The reasons he gave for his decision are sufficient. I would dismiss the appeal, brought as of right, on that ground.
Compatible Scale – Ground 3
The Commissioner found that the proposed development was inconsistent with CWPDC 76. He said:
Hence, as may have previously been implicit, I formally conclude that the proposed building does not maintain sufficient compatibility in overall scale and building height with adjacent development (to the east, north and to a lesser extent south) – CW Principle 76; in its visual bulk to both the street frontages, from the coastline and as viewed from the adjoining private open space of the property to the south, which is not sufficiently reduced/minimised by colour, materials, detailing and articulation; and the upper level setbacks of the building to the southern side boundary to the private open space adjoining, are clearly not sufficient in qualitative – visual impact terms, and extent or overshadowing/natural light, or in quantitative terms as set out above and in the first judgment of this Court with respect to CW Principle 78 and RCoZ Principle 15.[11]
[11] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31 at [20].
The residence to the east referred to by the Commissioner is not within the Coastal Zone. It is in the Residential Zone. Developments in the Residential Zone are generally limited to one storey. It follows that developments in the Residential Coastal Zone will generally be of a significantly greater scale than adjacent developments immediately to the east in the Residential Zone. The Commissioner did not expressly advert to that consideration. In my view he has erred by failing to take that consideration into account or, to put it in another way, by applying CWPDC 76 to adjacent developments in different zones at all. This error involves a question of law because it raises the proper construction and reach of CWPDC 76.
The dwelling to the north across Holder Road is a single storey dwelling. The proposed development and the dwelling to the north (91 Esplanade, Hove) are separated by Holder Road. The separation mitigates the significant difference in size. Moreover, in the application of CWPDC 76, it is necessary to have regard to the circumstances that multi-storey developments are permitted in the Residential Coastal Zone. Economic imperatives arising from the cost of land in the Residential Coastal Zone are driving an inevitable progression of multi-storey development along the Esplanade. The Commissioner failed to advert to that consideration. In my view he has also erred in that respect.
In my view, however, the finding that the development did not comply with CWPDC 76 did not materially affect the Commissioner’s ultimate conclusion. After referring to the variance between the development and CWPDC 76 in [20] of his reasons, the Commissioner immediately proceeds to consider the bulk of the development. The Commissioner also observes that the scale of the development is not significantly greater than Mr Tanti’s residence to the south. The Commissioner does not refer to CWPDC 76, or to the incompatibility of scale, in the paragraphs which set out his “synthesis and conclusions”. In my view it is clear from the reasons as a whole that the Commissioner considered the variance with CWPDC 76 to be a minor matter.
Miscellaneous errors – Ground 9
The Commissioner found that the profile of the building did not match the slope of the land contrary to RCZPDC 2.[12]
[12] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor(No 2) [2009] SAERDC 31 at [21].
With respect I cannot understand the basis for that finding. Equally I cannot understand the basis upon which the Commissioner found that the development would have a detrimental effect on the “amenity and recreation value of the coastline”. I would expect that users of the coastline would be quite indifferent to the development.
It is also difficult to understand the reference in [21] of the Commissioner’s reasons to the prescription of a maximum wall height of 10.5 metres in RCZPDC 8(b), given the judgment of Bleby J in AG Building.
However, I am satisfied that none of those findings played any part in his ultimate conclusion. Those errors do not undermine in anyway the Commissioner’s factual assessment of the visual bulk of the building or his findings with respect to overshadowing.
Site coverage – Ground 2
In his first decision of 19 August 2008[13] the Commissioner said:
70The evidence is inconclusive as to whether the broad, squat palm tree at the rear of the existing dwelling and visible from Holder Road (photo 3, Exhibit A2 and photo 22, Exhibit A22), should be assessed to be a ‘significant tree’ under the Act and Regulations. Neither the Council staff report nor the case of the Council assess or define it as a significant tree and only Mr Rolfe raised that possibility, though inconclusively. In any event, his evidence was that it did not meet any of the criteria in Principle 276 in support of its retention. I agree. Whilst if it had been convenient and practical to retain, it would have been a positive aspect of a proposal (and sought by Zone Principle 18), it is not essential or a prerequisite to do so in any redevelopment. Other small trees/shrubs on the site fall into a similar category. Nevertheless, it remains important, emphasised by CW Principle 255(a) and Zone Principle 17, that vegetation enhancement is a required element of a development proposal in the Zone and locality. I consider it to be the more so due to the scale, bulk and siting of the proposal (having regard to Principle 263(b)). The landscaping component of the development proposal (sheets 1 and 3 of 8, Exhibit A1), has not been designed to incorporate any taller screening/softening elements either to road frontages or to side/rear boundaries (where there is, in any event, inadequate building setbacks to do so). Moderate height in new vegetation could and should be achieved to the northern side (at least either side of the Entry feature), to the rear eastern side within a 1 to 2 metre landscaping strip and potentially in the front set back area as well.
71This aspect is also not fatal to the proposal, but not enough is achieved to constitute an acceptable level, as presented to the Court. However, it could be further defined/amended either in response to an intimation of the Court or as a condition of any consent granted.[14]
[13] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor [2008] SAERDC 55.
[14] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor [2008] SAERDC 55 at [70]-[71].
In AG Building and Developments Pty Ltd v City of Holdfast Bay and Tanti,[15] Bleby J found that CWPDC 99 which required sufficient space for, amongst other things, landscaping had been complied with.[16]
[15] [2009] SASC 11.
[16] [2009] SASC 11 at [43].
Even though compliance with CWPDC 99 was conclusively determined by the judgment of Bleby J in AG Building, it was clear that the bulk, scale and articulation of the building were issues that the Commissioner was required to consider pursuant to the order of Bleby J remitting the matter to the Environment Court. In that context the potential for more extensive, or at least different, landscaping and vegetation to nullify the objectionable aspects of the appearance of the building was a relevant consideration. The appellant could not reasonably have failed to appreciate that, in that sense, landscaping was an issue, from a reading of [70] of the Commissioner’s reasons in the first decision.
When the matter was remitted to the Commissioner, he identified, in [3] of his reasons, site coverage as one of the issues which did not require reconsideration in the light of the reasons for decision of Bleby J.
However contrary to his earlier intimation the Commissioner went on to find in [13] of his reasons:
The intent-purpose of the Principle [99] is not achieved sufficiently with respect to landscaping enhancements opportunities and in light of the high coverage by built form or hard surfaces (driveways and other paving).
The Commissioner did not refer to CWPDC 99 again after making that finding. In particular, it was not referred to in the three paragraphs which I have set out above and which contain the essential reasoning which led to the Commissioner’s conclusion. It appears that what ultimately concerned the Commissioner was the fact that the visual bulk of the building itself was not offset by vegetation. So much is clear from the reference in [24] of the Commissioner’s reasons to “the relative absence of significant areas for deep planting to achieve even mid size or preferably taller tree planting to offset the scale, bulk and dominance of this building on what is an elevated corner site”.[17]
[17] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31 at [24].
It follows that I would find that the Commissioner erred in finding that the intent and purpose of CWPDC 99 was not achieved. However, the only relevance of that finding, in the ultimate judgment that he made, was that the scale, bulk and dominance of the proposed development had to be assessed without the benefits that mid size or taller trees may have contributed.[18]
[18] See CWPDC 115.
In the circumstances and having regard to the way in which the Commissioner reasoned, it is not to the point that there was evidence that the landscaping was otherwise adequate. That evidence must be understood as meaning that it was adequate independently of any concern about the bulk and appearance of the building.
For these reasons I am satisfied that the error made by the Commissioner with respect to compliance with CWPDC 99 is immaterial and that the appellant must always have appreciated that the Commissioner might have concluded that the proposed landscaping was insufficient to ameliorate the visual bulk of the development.
Overlooking – Ground 7
The Commissioner found that the potential for overlooking had not been minimised to an acceptable extent by the proposed development. In his reasons of 19 August 2008 the Commissioner had described the possibility of overlooking as of “very low concern and risk” and had concluded that those concerns could be readily addressed by imposing a condition that opaque or obscure screening be provided.[19] The appellant contends that in those circumstances it was entitled to assume that concern about overlooking would not be used as a basis upon which to refuse approval.
[19] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor [2008] SAERDC 55 at [61]-[62], [75]-[76].
However, in the reasons delivered on 9 June 2009 after further hearing the appeal from Holdfast Bay’s refusal, the Commissioner said: “My assessment is that the potential for overlooking is not minimised to an acceptable extent”.[20]
[20] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31 at [8].
The short answer to the appellant’s complaint is that the Commissioner’s second decision to confirm the refusal of Holdfast Bay was not influenced by his assessment that the risk of overlooking had not been minimised. He again accepted that there were aspects of the proposed development including overlooking, which could be dealt with by conditions.[21] Concern about overlooking did not feature in any way in the Commissioner’s ultimate conclusion and the reasons he gave for it. The finding complained of is immaterial.
[21] AG Building and Developments Pty Ltd v City of Holdfast Bay and Anor (No 2) [2009] SAERDC 31 at [3], [25].
Merits of decision – Ground 1
The appellant complains that the Commissioner erred in failing to find that the proposed development ought to be approved (Ground 1). However, for the reasons I have given, I have refused permission to appeal the Commissioner’s findings concerning the visual bulk of the proposed development and the overshadowing it causes. This ground must therefore be considered on those factual findings. The departure from the provisions of the Development Plan regulating those matters are sufficient to reasonably justify refusal of approval.
It will also be remembered that CZPDC 10 provides for a separation of one metre from the side boundary for the ground floor of a building and three metres for the second and third floors. The express provision of CZPDC 10 is consistent with the general regulation in CWPDC 94 and at least broadly consistent with the design technique. It is trite to observe that non-compliance with the setback provisions do not necessarily preclude approval of a development. Nonetheless the setback provisions are particularly important in the Residential Coastal Zone precisely because it contemplates the construction of multi storey dwellings which face to the west.
The appellant contends that the upper level setbacks on the southern boundary are acceptable even though they are significantly less than the three metres required by CZPDC 10(b). I accept that in assessing the application for development the limited consequence of departure from those provisions, in terms of overshadowing and light obstruction, is a relevant consideration. However, I do not accept that consequential overshadowing is the only relevant consideration. The setback requirement also enhances the aesthetic appearance of developments along the Esplanade. Without it the development of the Esplanade might present, on its important western aspect, as a high monolithic structure. The existence of other developments along the Esplanade which do not meet the existing setback requirements is not a reason to excuse or discount non-compliance with the setback provisions. If anything such developments emphasise the importance of compliance with the setback requirements. Nor do I see any inconsistency between the progressive setback suggested by the design technique for CWPDC 94 and the setback requirements for RCZPDC 10(b). At the very least RCZPDC 10(b) envisages a further significant increase in the setback of upper levels beyond the one metre ground floor requirement.
Although the proposed development satisfies the setback provisions at the ground floor level, at first floor level the setback is only 1.8 metres; the design technique to CWPDC 92 suggests 2.5 metres and CZPDC 10 requires 3 metres. At the second floor level the setback is between 1.8 metres and 3.2 metres but CZPDC 10 requires 3 metres and the design technique to CWPDC 92 suggests an even greater setback.
The ultimate planning judgment which must be made on the basis of the proposed development’s failure to meet the requirements of the Development Plan to which I have referred is both a matter of discretion and fact. I am not satisfied that the ultimate discretion was wrongly exercised. It is not attended with sufficient doubt to attract a grant of permission to appeal.
Conclusion

I have found that the Commissioner erred in law in reaching some of his findings. Those findings, however, did not play any material part in his reasoning for confirming the refusal of planning approval by Holdfast Bay. Accordingly I would not allow the appeal on grounds 2, 3, 7 and 9 because the findings challenged by those grounds did not affect the Commissioner’s ultimate conclusion. I would dismiss the appeal on the question of law raised by ground 5 for the reasons I have given. I refuse permission to appeal the questions of fact raised by grounds 1, 4, 6, 8 and 10 for the reasons I have given. I find that the reasons given by the Commissioner for not accepting the evidence of the witness, Russell, were adequate and therefore dismiss the complaint, made in ground 8.