City of Burnside v Build-Tec Services (No 2)
[2005] SASC 72
•4 March 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
CITY OF BURNSIDE v BUILD-TEC SERVICES (No 2)
Judgment of The Honourable Justice Besanko
4 March 2005
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
Appeal against orders of a Commissioner of the Environment, Resources and Development Court - appeal on questions of law - whether Commissioner erred in his construction of a council Objective and erred in concluding that the proposed development was strongly in accord with that Objective - whether Commissioner erred in concluding that the proposed dwellings were "low density" within the terms of a council Objective - where the proposed dwellings did not comply with the Principles of Development Control in relation to dwelling density - where Commissioner took into account the existing use of the land in determining whether the proposed dwellings were "low density" - appeal allowed and matter remitted to ERD Court for a rehearing.
Environment, Resources and Development Court Act 1993 s 30; Development Act 1993, referred to.
City of Burnside v Build-Tec Services [2005] SASC 50, considered.
CITY OF BURNSIDE v BUILD-TEC SERVICES (No 2)
[2005] SASC 72
BESANKO J: This is an appeal against orders made by a Commissioner of the Environment, Resources and Development Court (“ERD Court”). The appeal is brought pursuant to s 30 of the Environment, Resources and Development Court Act 1993 (“ERD Court Act”) and it lies as of right on a question of law, and by leave on a question of fact. The appellant has not sought leave to appeal on a question of fact, and it asserts that its challenges to the Commissioner’s decision raise questions of law.
On 8th February 2004, Build-Tec Services made an application to the City of Burnside for provisional development plan consent under the provisions of the Development Act 1993. The application related to land at 470 The Parade, Rosslyn Park in the State of South Australia (“the subject land”). The existing use of the subject land was as a motor repair station, a workshop and a storage area for vehicle bodies. The application sought approval for development involving the demolition of the existing buildings on the subject land and the erection of three part two-storey detached dwellings together with integrated garaging, landscaping and fencing. On 22nd June 2004, the City of Burnside refused to grant provisional development plan consent. Build-Tec Services appealed against the City of Burnside’s decision to the ERD Court and the appeal was heard by a Commissioner of that Court. On 10th September 2004, the Commissioner issued a memorandum indicating that he would uphold the appeal. On 30th September 2004, the Commissioner delivered reasons and made orders upholding the appeal and granting provisional development plan consent to an amended proposal subject to seven conditions.
The City of Burnside appeals to this Court against the Commissioner’s orders. The appeal was not instituted within the prescribed time, and on 10th February 2005 I extended the time for instituting the appeal (City of Burnside v Build-Tec Services [2005] SASC 50).
The Commissioner’s reasons
The subject land comprises allotments 99 and 100 FP140060, and is contained in certificates of title register book volume 5716 folio 518 and register book volume 5811 folio 266. Both allotments have a frontage to The Parade. The eastern boundary of the two allotments has a frontage to Taylor Terrace. There is no corner cut-off on the corner of the two roads and there are no registered easements over the land. The subject land is rectangular in shape with a northern frontage of 30.48 metres to The Parade and an eastern frontage of 45.72 metres to Taylor Terrace. The total area of the subject land is 1393.54 square metres. The subject land slopes gently from the south-eastern corner on Taylor Terrace to the north-western corner fronting The Parade with an overall fall of some 2.4 metres over a distance of approximately 55 metres.
The Commissioner described the existing use of the subject land in the following terms:
“10 The land contains an old, former Shell service station building, most likely established in the 1960’s (Exhibit R1, p.49). Facing The Parade is a small canopy typical of an old style service station providing shelter over fuel pumps for customers (but no fuel pumps remain). The area in front of the service station building to The Parade, is paved with concrete and it is understood there remains five underground storage tanks that have been used for the storage of petroleum products in the past.
11 The building, on the evidence, has been used in recent times as a "motor repair station", as defined in the Development Regulations 1993, including motor vehicle workshops, and in the rear yard there have been a substantial number of motor vehicle bodies stored. The building is setback approximately 12-15 metres from each frontage with an administrative office component fronting The Parade and with workshop bays facing Taylor Terrace. The rear comprises a semi-open, partly roofed area fenced around the site boundaries with a high, brown coloured corrugated iron fence in poor condition and recently containing a collection of old motor vehicle bodies and apparently fuel and oil drums etc. Removal of all of those items appeared to have just been completed at the time of the view.
12 The only trees on the subject land are four small trees planted against the north face of the main building and a 7-8 metre high conifer adjacent the footpath on the corner of the site (and none are of particular amenity value in the view of the witnesses). A small free-standing pole sign, some 6-7 metres in height is also located near the corner.”
Two expert planners, one called by the respondent and the other called by the appellant, gave evidence before the Commissioner. The expert planner called by the appellant described the existing site as uninteresting, not offensive, benign and bland. The Commissioner rejected that description, and he found that the existing site was prominent, open to view and ugly in appearance.
The proposed development involved the demolition of all existing buildings and structures on the subject land, the removal of all underground storage tanks, the rehabilitation of the subject land and the construction of three part two-storey detached dwellings each with a frontage to Taylor Terrace. Minor amendments were made to the proposal plans after the appellant’s decision to refuse provisional development plan consent.
Each dwelling is to consist of a master bedroom on the ground floor and two bedrooms and a bathroom on the upper level, meals/dining, dining (dwellings 1 and 2 only), kitchen, laundry and double garage at ground level. In his reasons, the Commissioner sets out details of the subject land, the site areas and building dimensions of the three dwellings, and he sets out features of each of the dwellings. It is unnecessary for me to set out those details although it may be noted at this stage that the upper storey element of dwellings 1 and 2 is located within the roof space, whereas for dwelling 3 there are clearly two storeys and upper walls visible.
The Commissioner made findings as to the locality based on what he called “visual and character perception considerations”. He said that the locality has a mixed land use character, predominantly residential and with a local centre, school, church and transportation influences. He said that amenity levels for residential use were only moderate along The Parade and gradually improving away from The Parade along Taylor Terrace, but still only average for the council area.
The Commissioner set out what he considered to be the relevant Development Plan provisions and they included Council Wide Objectives and Principles of Development Control, Residential Zone Objectives and Principles of Development Control and the Residential Policy Area 8 – Rosslyn Park (“RPA 8”) Objective and Principles of Development Control. The relevant maps are Bur/1 (overlay 1), Bur/5 and Bur/13. The subject land is situated in a Residential/RPA 8 Zone. The Commissioner found that the Objectives (Objectives 1 and 7) and Principles of Development Control (1(a)) for the Residential Zone encourage the residential land use and the dwelling type proposed. He referred to Objective 1 and Principle of Development Control 1 for RPA 8. They are important and it is necessary for me to set them out.
“RESIDENTIAL POLICY AREA 8 – ROSSLYN PARK
…..
OBJECTIVE
Objective 1: Maintenance and enhancement of the low scale, low density residential character that is derived particularly from:
(a) primarily low density, single-storeyed, detached dwellings in a variety of architectural styles (mainly from the post-war period, but with some from the inter-war period in the west); and
(b) open front gardens, moderate to deep building set-backs, mature vegetation (particularly significant eucalypts in the south west and along Edgecumbe Terrace) and extensive grassed verges.
Acknowledged, significant variations from the desired character, or the prevailing character or environmental conditions, forming, nevertheless, part of the character that is to be maintained and enhanced, are found:
(a) on land with frontage to Kensington Road, to Penfold Road, and to The Parade, (including the sites of several non-residential uses with frontage to The Parade); and
(b) adjacent to the Local Centre Zone.
PRINCIPLES OF DEVELOPMENT CONTROL
Local Compatibility
1 Development should:
(a) conserve and enhance the character of the Policy Area, described in Objective 1, and significant trees therein;”
(b) complement the scale, bulk, siting and positive elements of existing dwellings where a distinctive and attractive streetscape character exists."
Site Areas and Frontages
2Subject to Principle of Development Control 4, the site area for a detached dwelling should be not less than 550 square metres.
3The site area per dwelling of any type, other than a detached dwelling, (averaged for group dwellings or dwellings in a residential flat building) should be not less than 500 square metres.”
The Commissioner found that the removal of a motor repair station, a semi-industrial land use, and a change in the use of the subject land and redevelopment for detached dwelling residential use went a substantial way to meeting the purpose and intent of the Council Wide Objectives and Principles, the Residential Zone Objectives and Principles and the RPA 8 Objective and Principle. He said that the redevelopment for detached dwelling residential use will “significantly improve residential character and residential amenity (visual, aural odour and dust levels) in the locality and is a strong advantageous aspect of the proposal acknowledged by both expert planners”.
In a critical passage in his reasoning the Commissioner said:
“31 The subject land and its current use is an acknowledged variation to the desired character in RPA 8. Development that represents a move toward the desired character is therefore obviously strongly in accord with RPA 8 Objective 1, and it exceeds the stated intentions of enhancing the character of, effectively, sites not conforming to the desired character.
32 The paragraph acknowledging variations under Objective 1 (with similar introductory wording set out in most of the residential policy areas) is poorly worded as it appears to encourage maintenance (and enhancement) of uses and development not in accord with the desired character, which flies in the face of conventional planning wisdom. The presumed intent is for development to move toward closer alignment and achievement of the stated desired character and Area objectives. The wording should be reviewed and amended in a future Development Plan review.”
The Commissioner said that notwithstanding these conclusions, the proposal still needed to sufficiently meet the requirements as to dwelling density, built form, streetscape and other matters in the Development Plan. He considered each of these matters in turn.
In terms of dwelling density, the Commissioner noted that the site area per dwelling of 457 square metres in the case of dwellings 1 and 2, and 479 square metres in the case of dwelling 3, did not meet RPA 8 Principle 2 which provides for a site area of 550 square metres per dwelling for detached dwellings, or Principle 3 for other dwelling types that might reasonably be anticipated in RPA 8, namely, 500 square metres per dwelling.
The Commissioner noted that the requirements as to other elements relevant to density, such as site coverage and/or paved area, floor area ratio, frontage width for each site and (to a larger extent) the front and side setbacks of the dwellings were met.
At the suggestion of counsel for the appellant, the Commissioner examined in detail the dwelling density guidelines in all residential policy areas in the relevant Development Plan. His conclusions were as follows:
“38 In summation, and generalising, I consider that reference to low density relates to site areas per dwelling of greater than 400-425 square metres per dwelling (having regard to RPA 4 – Principle 3, RPA 25 – Principle 4, RPA 26 – Principle 2, RPA 27 – Principles 3, 4 and 6, and RPA 29 – Principle 3(a)), and up to 750-2,000 square metres per dwelling (RPA 30 – Principle 3); that reference to medium density relates to less than 400 square metres per dwelling (having regard to RPA 19 – Principle 3, RPA 21 – Principle 3, RPA 26 – Principle 2 and RPA 31 – Principle 3) and down to as low as 160 square metres per dwelling (RPA 22 – Principle 2); but I acknowledge that there are several combinations and variations between, of low to medium density.
39 Hence, I consider the proposed dwelling density of 457 square metres per dwelling (R1 and R2) and 479 square metres per dwelling (R3), to comprise "low density" in the Burnside context, despite variation from RPA 8, Principle 2 (or Principle 3).”
The Commissioner said that the dwelling density aspect of the proposed development was “marginal” but he did not consider it fatal to the proposal and he said that when coupled with the other generally complying aspects of density referred to above, the proposal would still maintain a low density residential character in the locality. He said:
“This is particularly the case when an unattractive semi-industrial land use is to be displaced by a residential use, detached dwelling type and of overall residential character.”
The Commissioner then went on to consider the requirements as to streetscape character and built form. The Commissioner had some concerns about dwelling 3 in terms of built form and he said that whilst he had some reservations on this aspect, on balance he found it acceptable for reasons which he gave. The Commissioner said that the height of dwelling 3 was somewhat “marginal” and at variance with RPA 8 Objective 1, whilst RPA 8 Principle 1(b) was of limited relevance. The Commissioner then considered a number of other matters which it is not necessary for me to mention.
The Commissioner expressed his conclusions in the following way:
“61 I have come to the following conclusions:
·The re-instated residential land use and detached dwelling type replacing a motor repair station use, is in accord with the desired character for the Residential Zone and RPA 8.
·The dwelling density (site area per dwelling) is adequate, meets RPA 8 Objective 1 and is acceptable in the light of all relevant circumstances, though at variance with RPA 8, Principle 2.
·The streetscapes are not distinctive and attractive, nor of a sensitive streetscape character.
·The proposed buildings will sufficiently maintain built form and streetscape visual harmony, particularly R1 and R2, and whilst residence R3 is at some variance with Development Plan guidelines and not without some reservations, it is assessed to be acceptable in the light of all relevant circumstances, including the locality and streetscape context.
·All other relevant issues and aspects are acceptable or can be made so by condition or minor amendments.
62 On weighing up all relevant matters and considering the Development Plan as a whole, I consider that the proposal is sufficiently in conformity with the Plan to warrant consent. Hence, in general, I agree with the opinion of Mr Batge and not that of Mr Baade.”
Issues on appeal
There are six grounds of appeal. However, on the hearing of the appeal counsel for the appellant submitted that the Commissioner had made two errors of law which were such that his decision could not stand. Counsel for the appellant did not submit that this Court should make an order refusing provisional development plan consent. He accepted that if he made good his propositions, then the matter would have to be remitted to the ERD Court for a rehearing.
The first error identified by the appellant relates to the Commissioner’s interpretation of Objective 1 of RPA 8. The appellant submits that the Commissioner erred in his construction of the Objective and erred in his conclusion that the proposal was strongly in accord with the Objective.
The second error identified by the appellant relates to the Commissioner’s treatment of the requirements as to dwelling density. Objective 1 refers to the maintenance and enhancement of the “low density residential character that is derived particularly from …”. The Commissioner considered whether the site areas per dwelling of 457 square metres in the case of dwellings 1 and 2, and 479 square metres in the case of dwelling 3, were low density by having regard to requirements in other areas within the council area. The appellant submits that this was an error and that it led the Commissioner to erroneously conclude that the dwellings were low density despite the fact that they did not comply with the statement in Principle 2 to the effect that the site area for a detached dwelling should not be less than 550 square metres.
The construction of Objective 1
Objective 1 of RPA 8 refers to acknowledged significant variations from the desired character, or the prevailing character or environmental conditions. The desired character in the case of RPA 8 is low scale, low density residential use. It seems that that is also the prevailing character or at least a strong element of the prevailing character. The existing use on the subject land is an acknowledged significant variation from the desired character and the prevailing character. Nevertheless, it seems that it is part of the character that is to be maintained and enhanced. The reason for the reference in the Objective to variations from the desired character is not entirely clear. It seems to me that the better view is that the reference to variations is no more than an acknowledgment that such uses exist and form part of the existing character. Even if one reads the words “maintained and enhanced” as relating to the variations, I cannot see how it can be said that the Objective encourages no more than a move towards the desired character of low scale, low density residential use such that it can be concluded that the proposed development is, to use the Commissioner’s words, “obviously strongly in accord” with Objective 1 of the RPA 8.
I do not think that the Commissioner considered that the proposed development fell within the terms of the Objective of the maintenance and enhancement of the low scale, low density residential character of the area. Furthermore, he seems to have taken the view that the existing use is an acknowledged variation from the desired character in RPA 8. Those conclusions cannot be criticised. However, the Commissioner goes on to say that the proposed development represents a move towards the desired character and therefore is obviously strongly in accord with RPA 8 Objective 1, and that it exceeds the stated intentions of enhancing the character of effectively sites not conforming to the desired character. I do not think that conclusion is right. I agree with the Commissioner that there are some difficulties with the wording of Objective 1 insofar as it refers to acknowledged, significant variations from the desired character, but I do not agree with the conclusion reached by the Commissioner. In my opinion, the reference to variations from the desired character is no more than a reference to the fact that there are uses in the area which vary from that character. Those uses are part of the character of the area that is to be maintained and enhanced. Precisely what is meant by the maintenance and enhancement of the character insofar as it is made up of the variations is unclear. Nevertheless, I do not think that the reference to acknowledged, significant variations leads to the conclusion that a proposal which moves from the variation towards the desired character is strongly in accord with Objective 1. In my opinion, unless one is looking at the maintenance or enhancement of an acknowledged significant variation, the issue raised by Objective 1 is whether the proposal will maintain and enhance a low scale, low density residential character. I agree with counsel for the appellant that in this case at best the proposed development was neutral in terms of Objective 1. In the alternative, it would have been open to the Commissioner to say that the proposed development did not accord with Objective 1, although he might have added that the departure is not serious. Either way, it is an error to say that the proposed development is strongly in accord with Objective 1 and the error is an error of law. Plainly, the Commissioner’s conclusion on this point was a material one in terms of his final conclusion that the proposed development warranted provisional development plan consent.
The requirements as to dwelling density
The Commissioner referred to the fact that Objective 1 refers to “low density residential character” and in (a) “primarily low density, single-storeyed detached dwellings …”. In order to determine what was meant by the words “low density”, and at the invitation of counsel for the appellant, the Commissioner looked at the dwelling density guidelines in all residential policy areas in the Development Plan. He did not confine himself to the guidelines for detached dwellings, but also considered the Principles of Development Control in relation to the site area per dwelling of any other dwelling type. The Commissioner reached the conclusion that low density means site areas per dwelling of greater than 400 to 425 square metres per dwelling and up to 750 – 2000 square metres per dwelling, and that reference to medium density means less than 400 square metres per dwelling and down to as low as 160 square metres per dwelling but he acknowledged “that there are several combinations and variations between, of low to medium density”. He considered that it was appropriate to describe the site areas per dwelling of each of the three dwellings as low density despite the variation from RPA 8 Principle 2 or Principle 3. I do not think that this is a proper line of reasoning because I think that the important point is that the proposed development does not comply with Principle 2 or 3 for RPA 8. However, I do not think that the Commissioner’s approach, which he was encouraged to take by counsel for the appellant, has led to a material error. The Commissioner was right to say that the site area per dwelling of the three dwellings was marginal but not fatal to the application. He was right to have regard to what he described as the “other generally complying aspects of density”. He may not have been right not to have regard, in the first instance at least, to RPA 8 Principles 2 and 3 but I do not think this particular error vitiates his overall conclusion on the issue of dwelling density.
However, there was another aspect of the Commissioner’s reasoning as to dwelling density which I think was a material error. The Commissioner said in the context of dwelling density that the proposed development will maintain a low density residential character in the locality particularly when an unattractive semi-industrial land use is to be displaced by a residential use, detached dwelling type and of overall residential character. Whether the proposed development is low density cannot be affected by the use which it is to replace. The proposed development either meets the requirements of the Objective in terms of low density or it does not, and that is so irrespective of the existing use. This error seems to be related to the first error made by the Commissioner which I have referred to above.
Conclusion
The Commissioner erred in law in his construction of RPA 8 Objective 1 and in particular, in concluding that a proposed development which represents a move towards the desired character is strongly in accord with RPA 8 Objective 1. Related to this error is the further error of concluding that the existing use, and a comparison between the existing use and the proposed development, is relevant to whether or not the proposed development can be described as low density.
The two errors made by the Commissioner are errors of law. The errors, and in particular the first, were clearly material to his decision to grant provisional development plan consent. However, I am not in a position to say whether on proper approach provisional development plan consent should be granted or refused. In those circumstances, the matter must be referred back to the ERD Court for a rehearing.
I would allow the appeal and set aside the orders made by the Commissioner. I would remit the matter to the ERD Court for rehearing.