Chadha v City of Unley

CHADHA AND CHADHA v CITY OF UNLEY
[2003] SASC 99
Land and Valuation Division

DEBELLE J This is an appeal against a decision of a Commissioner of the Environment, Resources and Development Court (“the Environment Court”).
The appellants own a parcel of land in Lanor Avenue, Millswood. A dwelling is already constructed on portion of the land. Late in 2000, the respondent Council granted development consent to divide the land and in a further consent approved a development involving the erection of a two-storey dwelling and garage as well as the attachment of a carport and pergola to the existing dwelling. Construction has commenced.
In March 2002 the appellants applied to vary the design of the two-storey dwelling and to delete the pergola intended for the existing dwelling. I will describe the proposed variations in a moment. On 16 August 2002 the Council refused consent. The appellants appealed to the Environment Court. On 2 December 2002 a Commissioner of that court dismissed the appeal. The appellants appealed to this Court.
The appellants have obtained development consent to increase slightly the area of the allotment on which the proposed dwelling is to be constructed. As a result, they seek to remove the pergola to be attached to the existing dwelling and to relocate the carport for that dwelling. This is the only aspect of the proposed variation which is not controversial.
The controversy relates to the variations to the proposed two-storey dwelling. The Commissioner found that the size of the ground floor is to be increased slightly and, in particular, the size of the double garage is to be increased. This is challenged by the appellants. In the result, I do not believe it has any significant bearing on the outcome of this appeal. The more significant changes are to the first floor. Whereas the plans for which development consent had been granted incorporated the first floor within the roof space of the dwelling, the proposed amendment does not. In addition, the first floor has been substantially re-designed and its area increased. Whereas originally it comprised two bedrooms, a bathroom and a study, it is proposed to comprise three bedrooms, a living room, a bathroom and a balcony. The increase in area, excluding the balcony, is some 43 per cent. In addition, the overall height of the roof has been increased. The land is situated within an area zoned under the Council’s Development Plan as Residential B300.
The Commissioner had regard to the Objectives and Principles of Development Control for this zone as well as to the Statement of the Desired Character for the zone. It is unnecessary to repeat them. I refer only to Objective 1 and the Statement of the Desired Character. Objective 1 is in these terms:
“Provision for a range of dwelling types of up to two storeys compatible in form, scale and design with the existing positive elements of the character of the area.”
The relevant portions of the Statement of the Desired Character of the zone are in these terms:
“This zone is intended to continue as an established and attractive housing area offering a variety of dwelling types of not more than three storeys on a range of allotment sizes over much of the Unley area.
All types of single-storey and two-storey housing development in this zone should ensure that the character and levels and amenity of the locality enjoyed by the existing residents is substantially maintained.
A wide variety of housing types is evident in the residential RB300 zone. Development should reflect the type and appearance of housing in its immediate environs having regard to wall heights, roof forms, use of and style of verandas, external materials, proportions and areas of windows and front and side boundary setbacks.
The balance between trees and planting and built form as dominant elements in the zone varies from locality to locality. Development should respond both elements ensuring a high standard of compatible built form as well as tree planting and landscaping which maintains and improves the appearance of the locality.”
The Commissioner identified the issues in the appeal as being whether the height, scale, design and siting of the proposed two-storey dwelling as varied is in sufficient conformity with the Statement of the Desired Character and Objective 1 for the zone, the provisions of Objective 5 and Principle 12 and land use Objective 25 and the more specific design provisions of residential development contained in land use Principles 63, 73 and 74. Nothing which either of the parties has submitted has identified any error in the Commissioner’s identification of the issues.
The Commissioner considered relevant provisions in the Development Plan which he said provide:
“Specific guidance about the form of development expected in the zone.”
He continued:
“When the sole objective for the zone is read in the context of the stated intentions for its character one is left in no doubt about the emphasis placed on the compatibility between new development and the existing character of the locality. The zone provisions speak with some force and particularity in this respect. Furthermore, the importance to be placed on finding compatibility between new development and the existing character of the locality concerned is given particular weight by the provisions of General Objective 5, Land Use objective 25, and General Principle 12. Moreover, when taken together and read properly, the Desired Character statement, the expression of Zone Objective 1, the abovementioned provisions and Land Use Principle 63 advocate compatibility at the general level (form, scale, bulk and siting) and at the detailed design level, (type and appearance of houses in the near environment, wall height, roof forms, verandahs, materials, window proportions and setback distances).
Nevertheless I do not understand these provisions to propose a future in which new residential development mimics or replicates existing dwellings in the locality or the various elements of its character that are sought to be retained. Nor do I understand that the provisions should be so rigidly applied as to stifle innovative design. Instead, new development should be of a scale and bulk which are complimentary and respectful to its neighbours and the streetscape generally and, further, should incorporate design themes and features that are in harmony with the established and recognisable architectural character.”
He concluded that the scale, bulk and height of the proposed dwelling bears little resemblance to most, if not all, building forms in the locality. He held that, when constructed, it will be a dominant building mass sitting most uncomfortably in the streetscape. It would have, he said, little or no resemblance to the building forms in the locality. In reaching this decision, he had regard to the change to the character of the locality which would be effected if the original two storey dwelling were constructed. However, that was more compatible with existing buildings than the variation proposed. He concluded that the appeal should be dismissed.
The reasons of the Commissioner disclose that he has adopted a flexible approach. In particular, it is apparent from his reasoning that the proposal is entirely incompatible with development in the locality, even allowing for the fact that the Development Plan must allow for a new development with innovative design which does not necessarily replicate existing development.
The appellants complain that the Commissioner has misapplied reasoning of this Court in two decisions, namely, Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259 and Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula (1997) EDLR 558. Careful reading of the reasons of the Commissioner disclose that he has not done so.
The appellants also complain that the Commissioner proceeded on the footing this was an application for a new development, whereas in fact it was an application to vary the existing development consent. An examination of the Commissioner’s reasons shows that this submission must also fail because the Commissioner did have regard, albeit a slight regard, to the existing development consent. The Commissioner acknowledged that there will be occasions when it is appropriate to consider the effect of an existing development consent, when determining whether to approve a variation of it. However, he properly recognised that caution must be exercised when doing so.
The approach of the Commissioner was to have regard to the existing development and treat the application as one to vary the existing development. He was prepared to attach no more than very little weight to the existing consent. It is implicit in his reasons that he did so because the variations to the existing consent resulted in a markedly different development from that already approved. Having compared the plans of the amended proposal and of the development for which consent was granted, I find no fault in the Commissioner’s reasons.
The appellant contended that the Commissioner had treated the development as a new proposal significantly different from the development for which consent had already been granted. The reasons of the Commissioner are perhaps not as clear as they might be in this respect. However, even if it is assumed that the Commissioner has proceeded on this footing, I do not think that he has erred in that approach. Section 39 of the Development Act 1993 provides for procedural matters concerning development applications. The relevant provisions for present purposes are s 39(6) and s 39(7) which require, as a matter of procedure, that the development be treated as a new application. I do not think those provisions are necessarily material when determining the approach which the Council should take. That is a matter which can be considered in detail on another occasion. More significantly, the question is as to the weight to be given to the existing development.
Even if the proposal was treated by the Commissioner as a new application it is quite apparent that he has, nevertheless, had some regard to what was the subject of the original consent. In doing so, he has acted entirely in accordance with the principles expressed in both Courtney Hill and, more particularly, in Airport Farms. No error has been demonstrated in the Commissioner’s approach in this respect.
The appellants rely on the fact that the Council’s planning officer had recommended approval. That is not a reason for setting aside the Commissioner’s decision. The recommendation of the Council’s planning officer represents but one planning opinion. More importantly, it is the Council, not the Council’s planning officer, which is the relevant planning authority. It was open to both the Council and the Commissioner to disagree with the opinion of the Council’s planning officer.
When stripped to essentials, the issue on this appeal is whether this Court should interfere with the exercise by the Commissioner of his judgement in relation to questions of planning principle. The central issue in the appeal rises no higher than whether the development as varied will in terms of height, scale, design, mass and siting sufficiently conform with the Development Plan to merit approval. The Commissioner found that it did not. The appellants have not demonstrated any error of law in the Commissioner’s reasoning.
This Court will interfere with decisions of the Environment Court upon what are essentially planning issues in exceptional cases only. The Court does not sit to hear purely planning issues to be argued unless the Environment Court has plainly made an identifiable and egregious blunder, has made a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional. This Court is reluctant to substitute its planning opinion for that of the Environment Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles. I refer to what was said by the Full Court in Ampol Road Pantry Pty Ltd v Corporation of City of Brighton (1993) 62 SASR 165 at 173. The appellants have not adduced any argument which justifies interfering with the decision of the Commissioner.
I referred earlier to the fact that there is no issue concerning the application to vary the location of the carport and to delete the pergola in respect of the existing dwelling. I will therefore hear the parties on the terms of the orders necessary to give effect to these reasons.

[2003] SASC 99

17 March 2003