City of Burnside v Peck - [2005] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
CITY OF BURNSIDE v PECK & ANOR
Judgment of The Honourable Justice Besanko
24 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 question of law - whether Commissioner erred in his interpretation of a council Objective - whether Commissioner applied the definition of "two storeys" in another Principle to the phrase "detached dwellings of one storey" in the relevant Objective - appeal dismissed.
Development Act 1993, referred to.

CITY OF BURNSIDE v PECK & ANOR
[2005] SASC 110
Land and Valuation Division

BESANKO J: Ms Sarah Peck and Mr Simon Peck wish to build a dwelling at 7 Romalo Avenue, Magill, in the State of South Australia. They propose to demolish an existing dwelling and garage. The property at 7 Romalo Avenue, Magill, is within the area of the City of Burnside.
Ms Peck and Mr Peck applied to the City of Burnside for provisional development plan consent under the Development Act 1993. The council refused consent. Ms Peck and Mr Peck appealed to the Environment Resources and Development Court (“the ERD Court”) against the council’s decision to refuse provisional development plan consent. The ERD Court, constituted of a Commissioner, heard the appeal and decided to allow the appeal. An order was made that provisional development plan consent be granted subject to a number of conditions.
The council appeals to this Court. Ms Peck and Mr Peck are the respondents to the appeal.
The appeal to this Court lies as of right on a question of law and by leave on a question of fact. The appellant has not applied for leave to appeal on a question of fact. In its notice of appeal it raises what it asserts to be three errors of law by the Commissioner.
The issue on appeal involves the proper interpretation of an Objective in the Development Plan.
The proposed development
The property at 7 Romalo Avenue, Magill (“the subject land”), is in an area designated in the Development Plan as Residential Policy Area 4 (“RPA 4”).
The proposed development involves the demolition of an existing dwelling and garage and the erection of a single storey detached dwelling with an upper level over integrated undercroft garaging together with retaining walls, landscaping and wall. There is an issue as to whether it is appropriate to call the proposed development, “single storey”. The eastern part of the building is one level and the western part of the building is two levels, being the dwelling and an undercroft garage. The subject land is rectangular in shape and located on the northern side of Romalo Avenue, some 15 metres east of Penfold Road and 200 metres north of The Parade. It has a frontage of 18.288 metres and depth of 45.72 metres providing a site area in the order of 836 square metres.
The subject land slopes from east to west across the site. The Commissioner referred to the finished floor level of the proposed building using a benchmark of 100.00 near the south-western corner of the subject land. The building will have one level of the dwelling (at 100.95 FFL) over the undercroft garage (at 98.30 FFL) on the western side, with the other level of the dwelling set at 99.90 FFL.
The Commissioner said that the proposal had been amended after the appellant’s decision, and he said that it generally involved the following:
“The proposal has been amended post the Council decision (Exhibits A1, A2, A3 and R2) and involves generally the following:
·      A dwelling of some 230 square metres floor area containing a lounge-dining area, four bedrooms, kitchen-family-meals area, bathroom, en-suite, laundry and landing play area, together with undercroft garaging of 6 metres in width and some 11.7 metres in length providing 70 square metres in area.
·      The building to be constructed with brick veneer walls (rendered on the front elevation and with standard red brick on the side and rear elevations); slate grey roof shingles; "Colorbond" panel lift-up door; aluminium awning window for a bay window and aluminium sliding windows, together with "Colorbond" gutters and downpipes with such trim colours not specified.
·      Maximum building height of 6.4 metres above natural ground level (at its highest point) on its western side, but more generally 5.5 metres in height, with a wall to eaves height of the garage of some 2.7 – 2.9 metres for a length of 11.7 metres. On the eastern side height varies from 3.2 to 5.5 metres, whilst from the street frontage the building appears at a height of some 5.5 metres to the ridge and from 2 metres on the eastern side to 3 metres on the western side.
·      Side boundary setbacks of 1.5 metres from both western and eastern sides and the FFL of the upper floor level on the western side not greater than 1.5 metres above natural ground level along that side.
·      Front boundary setbacks of 7.2 metres to a bay window, but stepped back to 7.7 and to 10 metres. The undercroft garage is setback approximately 12 metres from Romalo Avenue, whilst the rear of the dwelling is setback some 17.5 metres from the northern boundary.
·      Driveway gradients of 1:10 for the first 2 metres from the front boundary, 1:5 for the next 6.8 metres and 1:10 for the remaining 3.2 metres to the garage opening.
·      Retention of the large Eucalyptus tree and provision of additional landscaping to the front garden area with dimensions of some 10.5 metres in width and some 7 metres in depth. The proposed landscaping includes the following species (common names) – Christmas Bush, Native Pines, Drooping Sheoaks, Kneed Wallaby Grass and Windmill Grass, Hop Bush and a number of other medium sized shrubs.
·      Conceptual stormwater engineering details identified on Exhibit A2 showing the location of a proposed rear soakage sump, stormwater piping and downpipe/grated sump, connecting to the street watertable. It also shows the extent of retaining walls to the rear patio and adjoining the driveway on each side (refer also to detailed engineering plan comprising Exhibit A3).”
The Commissioner made findings about the relevant locality. He did so having regard to the evidence of the two planning experts who gave evidence before him, Mr Watson who was called for the appellant and Mr Rumsby who was called for the respondents. The Commissioner described the locality in the following terms:
“Land use within the locality is entirely residential, detached dwelling and single storey in nature and forms part of the Magill suburb, initially developed in the immediate post-war period. It has a rectilinear road/land division pattern with allotments fronting Romalo Avenue orientated generally north to south. The residential character is highly affected, positively so, by remnant native vegetation in the form of Eucalyptus trees and mostly, mature attractive front gardens. Other relevant characteristics include:
·      All dwellings are single storey, with a cross-slope on most sites and the floor levels are raised on the low side by up to 1 metre, the height on the low side is somewhat greater in the order of 5 to 6 metres to the ridgelines, and with driveways and parking (carports or garaging) usually on the low side and at a lower level than the dwelling floor level.
·      Front setbacks are generous (8-15 metre range), more so on the southern than the northern side of Romalo Avenue and with one or two exceptions only.
·      Buildings of masonry walls, tiled roofs, of generally hipped and/or gable design and with relatively low pitch.
·      Side setbacks are varied, with those on the northern side of Romalo Avenue more consistently of 1-2 metres on the non-driveway side and some 4 metres on the driveway side, whilst those on the southern side of Romalo Avenue, are more varied and irregular with setbacks ranging from 1-5 metres.
·      Building style and architecture is varied, generally of modest post-war Austerity or Conventional design and in some cases with Colonial or Art Deco influences.
·      The external condition and appearance of dwellings is varied – some are relatively poor and unattractive, whilst most are of moderate to fair condition and with no new dwellings of good condition. Such new redevelopment has occurred in adjacent areas but not within the defined locality.
·      A mix of front garden presentation from more natural, low maintenance irregular forms, to those with lawns, ornamental gardens and more regularity.
·      Front fencing is varied, although it is absent in some instances and in others, incorporates low walls, hedges, timber paling or open tubular styles and with a few solid gates.
·      Overall, the main consistency in character is brought about by the trees and gardens in the streetscape and the subdued, relatively consistent building form of low scale, set back moderately from the road boundary.”
The relevant provisions of the Development Plan
There was no dispute between the parties as to the relevant provisions of the Development Plan. The Commissioner identified the relevant provisions of the Development Plan in his reasons. For the purposes of this appeal it is necessary to set out only the key provisions in the Development Plan. They are:
“Residential Policy Area 4 – Magill (Romalo)
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OBJECTIVES
Objective 1:       Maintenance and enhancement of the low density, residential character that is derived from primarily detached dwellings of one storey (or, on elevated sites, two storeys), typically of conventional and other post-war styles, with moderate building set-backs and well-landscaped, open front gardens.
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)     within the Romalo Avenue and Ormond Avenue area, where stands of indigenous and tall introduced trees make an important contribution to the desired character;
…..
Objective 2:      Protection and enhancement of the significant trees and densely vegetated character of the Romalo Avenue and Ormond Avenue area.
PRINCIPLES OF DEVELOPMENT CONTROL
1      Development should:
(a)     conserve and enhance the character of the Policy Area, described in Objective 1, and its significant trees, such as those in the vicinity of Romalo Avenue and Ormond Avenue; and
(b)     complement the scale, bulk, siting and positive elements of existing dwellings where a distinctive and attractive streetscape character exists.
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RESIDENTIAL ZONE
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Objective 2:       Protection and enhancement of the amenity of residential areas, with particular reference to the objectives for the relevant policy area.
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Objective 5:       Enhancement of the attractive qualities of streetscapes and particularly areas of cohesive character or visual sensitivity, through good design.
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PRINCIPLES OF DEVELOPMENT CONTROL
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2      Development should be designed to:
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(d) be consistent with and contribute to achievement of the objectives for the relevant policy area, having due regard to:
(i)      siting;
(ii)     mass and proportion;
(iii)building materials, patterns, textures, colours and decorative elements;
(iv)    ground floor height above natural ground level;
(v)     roof form and pitch;
(vi) acade articulation and detailing, and window and door locations and proportions;
(vii) verandas, eaves and parapets;
(viii) fence style and alignment; and
(ix)    landscaping.
3Buildings of more than one storey or more than one dwelling should have interesting and varied facades, and avoid featureless walls or monotonous patterns. Buildings should incorporate articulation or other architectural features, as necessary, to reduce bulky appearance and add visual interest.
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5Development and the finished levels on sloping sites should be sited and designed to:
(a) provide a stable and readily accessible building site, and reduce the visual bulk of the building;
(b) minimise soil erosion and the extent of excavation and fill; and
(c) minimise the need for, and height of, retaining walls.
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COUNCIL WIDE
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Objective 5:       Development which promotes community identity and exhibits a high quality of design.
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Objective 17:     Conservation of streetscapes and landscapes of aesthetic merit, and sites and localities of natural beauty.
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PRINCIPLES OF DEVELOPMENT CONTROL
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25The design of buildings should be of a high standard and related to adjacent buildings and other features which contribute to streetscape quality.
26To maintain the harmony of built-form character within a streetscape, buildings should:
(a) seek to maintain the continuity of vistas and existing building set-backs;
(b) not be set-back a lesser distance than the nearby buildings with frontage to the same road unless such distance is consistent with the minimum set-back prescribed in the relevant zone and policy area; and
(c) be set-back a greater distance if the proposed building is of greater bulk or height than other buildings fronting the same road, unless the taller or bulkier portion of a building is positioned towards the rear of its site, or the building is effectively screened, so that it will not dominate views from the road.
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114    Buildings should be set-back from the boundary of a road to:
(a) contribute positively to an attractive existing streetscape character or desired streetscape character, described in an objective for part of a zone;
(b) provide adequate visual and acoustic privacy by separating habitable rooms from pedestrian and vehicular movement; and
(c) provide for the efficient use of the land concerned and in any case, not less than the minimum distances stipulated below: [6 metres] …..
115The outer walls of a building should be of a height and length, and located in relation to the boundaries of its site (other than a boundary of a road), so that:
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(b) the established or desired pattern of space between buildings, as viewed from each road to which the site has frontage, is reinforced; and in any case (unless prescribed in part of a zone):
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(d) where the floor level of part of the building is 1.5 metres or less above ground level on the site, the building should be set-back not less than 1.5 metres from each side boundary of the site (unless it is built abutting such boundary) and not less than four metres from the rear boundary, except that:
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117    Unless otherwise prescribed in part of a zone, buildings should not exceed:
(a) two storeys (where "two storeys" is defined as one habitable floor level directly above all or part of another); and
(b) a building height of nine metres above natural ground level.
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139Garages and carports should be compatible with the associated dwelling and adjacent development in terms of scale, roof form and pitch, building materials, colour and detailing.
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145Retaining walls should be set-back from road frontages, stepped, constructed of materials of dark or medium tones and otherwise designed and sited so as to minimise their visual impact on the locality."
The Commissioner’s reasons
The Commissioner found that the characteristics of the locality, as described by him, reasonably reflect Objectives 1 and 2 of RPA 4. He found that the streetscape character of the locality is distinctive and attractive, particularly with regard to vegetation and front setbacks and to a lesser extent the subdued building forms. He found that residential amenity levels in the locality are moderate to high and are marred only by the aged, and in some cases, substandard appearance and condition of several dwellings including the dwellings on the subject land and adjoining to the east and west. The Commissioner referred to land which is outside the locality but nevertheless within RPA 4. He noted that land to the east is slightly steeper. There is recent and varied development to the east and there is recent redevelopment in streets to the north and south such as Giles Street and Ormond Avenue, including several full or part two storey, two level building forms.
The Commissioner noted that the proposal is neither complying nor non-complying within the Residential Zone and RPA 4 and is to be assessed on its merits against the provisions of the Development Plan.
The Commissioner said the key issue was the visual impact, in terms of scale, bulk and siting, of the undercroft garaging and part two-level building form on the streetscape character of Romalo Avenue and that it was to be tested against the relevant Development Plan provisions and in particular the provisions of RPA 4.
The Commissioner carefully considered Objective 1 of RPA 4. He noted that Objective 1 and other provisions in RPA 4 apply within the whole of the area identified as lying within RPA 4 and he described the extensive nature and characteristics of that area. The Commissioner examined the principal part of Objective 1, namely:
“Maintenance and enhancement of the low density, residential character that is deprived from primarily detached dwellings of one storey (or, on elevated sites, two storeys), typically of conventional and other post-war styles, with moderate building set-backs and well-landscaped, open front gardens.”
As to the reference in Objective 1 to “on elevated sites” the Commissioner considered the phrase imprecise, but he said it “clearly applies more directly and fully” to land of higher elevation and slope than the average or mid-point in cross-sectional, elevational terms, and he said it was likely it was intended to refer to the eastern perhaps one-third of RPA 4 geographical area. He noted that several full two storey detached dwellings are found in that part of the area. As to the central one-third of RPA 4 geographical area east of Penfold Road including the whole of the locality the Commissioner said:
“In the central one-third of RPA 4, but east of Penfold Road (including the whole of the locality), there is a sprinkle of two-storey dwellings in whole or part, such as approximately six along Giles Street to the north; one in Ash Grove (rear of 1 Romalo Avenue), one in Elm Grove (rear of 17-19 Romalo Avenue, though this one appears to be similar to the proposal with one upper level habitable floor over another garage level that is not habitable floor area), and some three, two-storey dwellings in Ormond Avenue to the south and just south of 2-22 Romalo Avenue.”
The Commissioner referred to the use of the word “primarily” in Objective 1 and he drew the conclusion from the use of that word that it made it clear that development other than that described may be accommodated in certain circumstances within RPA 4.
The critical aspects of the Commissioner’s reasoning may be summarised as follows:
1The word “primarily” means that two storey dwellings in whole or in part are not foreign in RPA 4 and they can be considered in the locality and on the subject land depending on detailed design and “fit” on the site and with adjoining dwellings.
2The appellant’s planning expert interpreted Objective 1 too narrowly particularly when regard is had to Principle 117(a) and the definition in that Principle of “two storeys”. The proposal does not involve “one habitable floor level directly above all or part of another”. The Commissioner said that “on that basis” the proposal is properly described as a single storey dwelling even though it has a sub-level garage element and “on that reasoning” the proposal squarely meets Objective 1. I have highlighted the Commissioner’s words because of the principal submission on the appeal.
3The fact that the proposal insofar as it involves a dwelling/garaging form is the first of its kind in the locality is not a reason for rejecting the proposal. Regard must be had to the context of the proposal in terms of the site and streetscape and the characteristics of the locality and its likely impact of the proposal in that context.
4The scale and bulk of the proposed building is complementary and compatible with adjoining and adjacent single storey built form. It meets the various set back requirements. The landscaping and semi-open landscaped setting will complement the dwelling and will enhance the important vegetated landscaped character of the streetscape and the locality. The excavated areas will not be readily apparent.
5The intent of the RPA 4 guidelines is (to use the Commissioner’s words) “sufficiently met” as are key provisions of the Residential Zones such as Objectives 2 and 5 and Principles 2, 3 and 5. The proposed design is of a sufficiently high standard and the dwelling will fit in reasonably well with its setting. The garaging form and other characteristics are sufficiently compatible with adjacent development (Principle 139).
6The Commissioner said that he generally agreed with the views of Mr Rumsby. Mr Rumsby said that he would not support a full two storey form on the subject land. Mr Watson was wrong in his opinion that the RPA 4 only envisaged single storey development in the non-elevated majority of the policy area. Mr Watson qualified his opinion by saying that he could support a two storey building on the subject land providing the second level was within the roof form and it presented as single storey from the street.

The Commissioner expressed his ultimate conclusion as follows:
“Considering all the assessment factors, the relevant Development Plan guidelines, the evidence, what was pointed out and observed on the view and in the locality and streetscape contexts, I consider that the proposal sufficiently meets the Development Plan guidelines and is thus worthy of Provisional Development Plan Consent. In particular, the visual impacts of the undercroft garaging/partially elevated dwelling building form, on the streetscape and the locality and in the light of the RPA 4 guidelines in particular, will, in my assessment and judgment, be acceptable and will, together with new front landscaping, enhance visual amenity and character of the streetscape and the locality.”
Issues on the appeal
The issues on the appeal are quite narrow.
It is said that the Commissioner erred in law in his interpretation of Objective 1 of RPA 4. It is said that he erred because he interpreted the reference in Objective 1 to “detached dwellings of one storey” by applying the definition of “two storeys” in Principle 117(a). That Principle appears in the Council Wide Principles of Development Control. It contains a definition of “two storeys” for the purposes of the Principle. It is said that it should not be used for the purpose of interpreting Objective 1. The Commissioner erred because he characterised the proposal as a development of one storey for the purpose of Objective 1 because the development involved a habitable floor level above a garage, not another habitable floor area. It is said that the Commissioner’s error in the interpretation of Objective 1 tainted the whole of his decision and that the matter should be remitted to the ERD Court for a rehearing.
I reject the appellant’s submission. The Commissioner referred to the argument that one storey in Objective 1 could be interpreted by reference to the definition of “two storeys” in Principle 117(a) but I do not think that he made his decision on that basis.
I should say that I do not think the definition of “two storeys” in Principle 117(a) should be used for the purpose of determining the meaning of one storey in Objective 1. In my opinion it is necessary when considering what is meant by one storey to have regard to the full description of the character identified in Objective 1.
In my opinion, all the Commissioner was doing in referring to the definition of “two storeys” in Principle 117(a) was illustrating that the appellant’s planning expert was taking too narrow a view of Objective 1 and he sought to illustrate that point by saying that on one view the proposal was not for two storeys (or part two storeys) but in fact was for one storey and therefore, as he put it, it squarely met Objective 1. However, as I have said I do not think the Commissioner made his decision on that basis. In describing the key issue the Commissioner referred to the proposed development as involving “part two-level building form”. The Commissioner emphasised the word “primarily” and said that the use of that word made it clear that development other than that described in Objective 1 may “potentially be accommodated in certain circumstances, within RPA 4”. He said that to that extent two storey dwellings in whole or part are not foreign in RPA 4. He said that the intent of the RPA 4 guidelines was “sufficiently met”. Importantly, he agreed with the views of Mr Rumsby. Mr Rumsby proceeded on the basis that the proposed development was two building levels or in fact in part two storeys. Mr Rumsby said that he would not support a full two storey form on the subject land.
For these reasons it seems to me to be clear that the Commissioner did not proceed on the basis that the proposal was single storey and therefore squarely within Objective 1. He considered it as part two storey or part two building levels. He made an assessment on the planning merits on that basis. That did not involve an error in approach and it has been said many times that this Court will not interfere with a planning judgment of a specialist court unless there is a clear error of principle. No such error has been identified.
The appellant has put another argument in oral submissions although it is not contained in its written outline of argument. It is submitted that the Commissioner erred in the weight he placed on the use of the word “primarily” in Objective 1. It is said that he should have placed no weight on that word because in the locality of the subject land the dwellings were all single storey. I reject this submission. Objective 1 applies throughout RPA 4. The fact that in a particular locality all dwellings are single storey is a matter relevant to the planning merits of a particular proposal and the Commissioner approached the matter in that way. It does not mean that one ignores the use of the word “primarily” in Objective 1.
Conclusion
In my opinion, the appeal should be dismissed.