Karger v City of Onkaparinga - [2005] SASC 441

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
KARGER v CITY OF ONKAPARINGA
Judgment of The Honourable Justice Bleby
25 November 2005
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
Appeal from decision of Environment, Resources and Development Court confirming respondent council's refusal of development approval for two semi-detached dwellings and associated carports - Dwellings partially completed when application lodged - Evidentiary matters to be taken into account where building partly constructed - Consideration of proposed development against relevant requirements of Development Plan - Failure to comply with numerous provisions - Whether Commissioner had proper regard to Development Plan objectives aimed at ensuring diversity of residential development including medium density, low-cost housing - All relevant considerations addressed - Finding of insufficient compliance with Development Plan justified - Relevance of encumbrance restricting nature and type of construction imposed by developer of area - Not relevant to question of compliance with requirements of Development Plan - Appeal dismissed.
City of Onkaparinga Development Plan 2004; Development Act 1993 s 57; Development Regulations 1993, referred to.
Kouflidis v City of Salisbury (1982) 29 SASR 321, applied.

KARGER v CITY OF ONKAPARINGA
[2005] SASC 441
Land and Valuation Division

BLEBY J: The appellant, Mr Karger, applied to the respondent Council for development approval to erect two semi-detached dwellings with associated carports on an allotment of land at 106 Pridham Boulevard, Aldinga Beach. At the time when the application was lodged the dwellings were partly completed.
The appellant has been served with an enforcement notice under s 84 of the Development Act 1993 in respect of the works that are alleged to have been undertaken without the necessary consent. That notice is the subject of other proceedings with which I am not presently concerned.
The Council refused development plan consent. The appellant appealed to the Environment Resources and Development Court. That Court, comprised of a single Commissioner, dismissed the appeal. The appellant now appeals to this Court. He has a right of appeal on a question of law. He can only proceed by leave on a question of fact[1].
[1] Section 30(2) Environment Resources and Development Court Act 1993.
It is clear that the appellant is not prevented from succeeding in this application merely because he has commenced the development without necessary approval if what he proposes can be justified on planning grounds[2]. On the other hand, an applicant cannot expect to gain any advantage in the approval process by the fact that the development is partly completed. In this case the Commissioner declined to take into account the quality of the development as evidenced by the partly constructed building in making the assessment of the proposal against the relevant development plan. I do not believe that the Commissioner was correct in doing so. While the Court was correct not to judge the quality of the development by the standard of workmanship involved in the construction, there is no reason why the appearance of the building, making due allowance for the fact that it is not completed, cannot be taken into account by way of elaboration of the plans relied on in the application.
[2] Kouflidis v City of Salisbury (1982) 29 SASR 321, Jacobs J at 335-336.
The nature of the proposal
The land the subject of the application is contained in a new outer suburban sub-division in which a number of new houses have recently been built. The land is rectangular in shape, has a frontage of 15.03 metres to Pridham Boulevard, an average depth of 35.41 metres and an area of 531 square metres. The land is essentially flat. The proposal involves the construction of two symmetrical semi-detached dwellings with associated carports. As the Commissioner observed, the plans are poorly drawn.
Mr Batge, a professional planner called by the respondent, described the proposal as follows:
The development proposal is for a pair of symmetrical semi-detached dwellings sharing a common wall separating the two dwellings, down the centre of the building from front to rear. The dwellings have a very simple low pitched roof presenting a simple gabled front across the whole of the building. The building progressively narrows towards its rear, with the side walls stepping progressively inwards in two places.
The main part of the building containing the living areas, has a setback of 6 metres from the front boundary of the allotment. However, the two dwellings do not provide for any internal garaging under the main roof. Therefore, any parking to be provided must necessarily be located in front of the dwellings as there is no other accessible space available. The plans therefore propose covered car parking by way of carports connected to the front of the building and protruding forward to within less than 1 metre of the street frontage of the subject land. A small, narrow verandah is also proposed across the frontage between the two carports.
Access to the only private open space located at the rear of each dwelling is by way of a 9.8 m long and 900 mm wide (narrow) passageway from the dining and living room at the front of each dwelling to rear doors. The three rear rooms are bedrooms and therefore, do provide any direct connection to private open space. The laundry is at the front end of the passage and access to clothes drying in the private open space is also only by way of the long narrow passage.
The carparking arrangements as shown would provide for one covered on-site carparking space, but there is no provision for any on-site uncovered or visitor parking.
Construction is of lightweight steel frame with the external walls clad with fibrous cement sheet to be finished in a painted on textured finish (Acratex).
. . .
The design of the dwellings are (sic) very basic, with a form that is very much like that of a large shed clad in fibrous cement sheet. It presents a large and simple wall and gable front to Pridham Boulevard without any relieving features. The only features in this wall are two small simple front windows located in the front wall of each dwelling and a pair of inset front doors with side lights set in approximately 1 metre from the alignment of the front wall. In addition, there are (sic) to be a pair of 4 metre wide carports located immediately in front of the dwelling which will be set in front of the pair of windows and dominating the frontal appearance of the development. ……
This design in my opinion, is exceptionally plain, unattractive and lacks any features of architectural merit that will make a positive contribution to the standard of buildings, and therefore the amenity within the locality. The carports and cars parked within them, in my opinion will be no improvement in the front appearance of the building as these will be the dominant features set unacceptably close to the street frontage. Such features are not commonly considered desirable architectural aspects of residential development and, are not in my opinion, a satisfactory solution to the undesirable design aspects of the building. The only feature of this dwelling that is truly in common with those surrounding it is that is single storey in height.
There was ample justification for the observations in the last paragraph.
The Commissioner’s decision
The Commissioner identified the central issues in the appeal before him in the following passage of his reasons:
The central issues in this matter revolve around the question of whether the form, density, design and siting of the proposed dwellings are in sufficient compliance with those provisions which seek, in new development, a high level of residential amenity and compatibility with the character of the built form in the locality and those provisions which establish guidelines for carparking.
The Commissioner then proceeded to assess the proposed development against a number of requirements of the Development Plan for the area of the Council, concluded that it failed to comply with a number of objectives and principles, that it did not comply with established guidelines in respect of the provision of car parking and the density, design and siting of the dwellings and concluded that it was inconsistent with the residential character and amenity of the locality. He dismissed the appeal.
The principal argument on the appeal
Mr Henry, counsel for the appellant, argued that, in identifying the central issues in the way he did, the Commissioner focussed his attention solely on questions of consistency with the character and amenity of the locality and compliance with off‑street parking requirements while ignoring reference to other principles and objectives contained in the Development Plan. He pointed particularly to those objectives and principles concerning residential development in the Council area which encouraged a full range of design and development techniques, an appropriate range of dwelling densities, types and sizes and the need to accommodate a variety of diverse housing needs in the area. He referred to the objectives and principles of the Residential Zone in which the land is situated and stressed the promotion of low and medium density housing of varied form to accommodate a wide range of lifestyle needs. He referred, for example, to the following extract from the commentary on the Council Wide Objectives for residential development:
The City of Onkaparinga is blessed with a variety of residential areas of varied character in both well established and newly developing areas, in undulating plains and coastal areas and in vegetated and cleared areas. Whilst certain localities exhibit a high degree of consistency of dwelling type and density, many others are quite mixed. Socio-economic trends across metropolitan Adelaide highlight the need for a more diverse range of affordable housing to suit all household needs. A greater number and percentage of dwellings of smaller size and on smaller parcels of land is required in Onkaparinga, as elsewhere in the Adelaide metropolitan area, in addition to traditional, standard housing. Such housing is required for the aged, post-family couples, youth, special needs groups, non-nuclear families (single parent families, extended families), professional couples and single persons.
Mr Henry linked those objectives and principles to the evidence of the appellant whose object in building the dwellings was to provide cheap rental accommodation in the area. Mr Henry submitted that the Commissioner had erred in failing to take into account and to give effect to those principles and objectives.
I reject Mr Henry’s argument. The Commissioner listed all the objectives and principles from the Development Plan which he considered to be relevant. He said that he had “examined these provisions at some length”. I take him to mean by that that he had examined the plan against those provisions at some length. The list of provisions included all but one of the policy objectives and principles to which Mr Henry referred. The Commissioner was fully alive to the need to provide medium density housing to accommodate the variety of housing needs in the area. He said:
In the language of the commentary following the objectives for the Zone, the proposed development is a ‘medium density’ form of housing. Objective 1 for the Zone supports the presence of medium density residential development within it. I accept the evidence of Mr Batge to the effect that the subject land is located in sufficient proximity to a range of services that renders it suitable, in general terms, for medium density development. I think Mr Batge’s conclusions in this respect refers to the provisions of Objective 6 for the Zone.
Zone Objectives 1 and 6 referred to in that extract were two of the objectives relied on by Mr Henry. Towards the end of his reasons the Commissioner said:
I acknowledge those aspects of the commentary that follow the objectives for Residential Development that speak of the containment of housing costs to accommodate people from a wide range of social and economic sectors of the community. I do not think that the containment of housing costs referred to in the text should manifest in poorly designed development. The provisions in the Development Plan advocate quite the reverse.
The Commissioner was clearly alive to the need for the provision of a variety of different housing styles in the Council area to accommodate a variety of housing needs. He indicated his acceptance of that need by reference to the objectives and principles to which he referred in his reasons. As far as he was concerned, that was not an issue in contention on the appeal. He proceeded on the assumption of the need for such variety and then proceeded, correctly in my view, to identify the real issues as being the standard of design and compliance with other detailed provisions of the Development Plan.
Compliance with the Development Plan
It was clear that the proposal did not comply in a number of material respects with the requirements of the Development Plan. It did not comply with the building setback requirements in Council Wide Principle 46. Those requirements applicable to the subject land in the relevant table provided for a setback of five metres. While the main body of the dwellings complied with that, the two carports attached to the front of the dwellings did not, and came within 0.5 m of the street boundary.
Council Wide Principle 44 provides that on-site car parking associated with residential use should be provided at the rate described in the relevant table to the Development Plan[3]. The table relevantly provides that, for all three bedroom dwellings except “multiple dwellings”, two car parking spaces should be provided on the “site” of each dwelling. This is not a “multiple dwelling” as defined in the Development Regulations 1993. The proposal encounters two difficulties in complying with those requirements. The first relates to the definition of “semi-detached dwelling” contained in the Regulations. That is defined as follows:
“semi-detached dwelling” means a dwelling –
(a)occupying a site that is held exclusively with that dwelling and has a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current planning authorisation; and
(b)comprising one of two dwellings erected side by side, joined together and forming, by themselves, a single building.
It is to be noted that it must occupy a “site” that is held exclusively with that dwelling. “Site” is defined as follows:
“site” means the area of land on which a building is built, or proposed to be built, including the curtilage of the building, or in the case of a building comprising more than one separate occupancy, the area of land on which each occupancy is built, together with its curtilage.
[3] Table Onka/4
On the plans forming part of the proposal, there is no indication of any dividing fence at the front or back of the two semi-detached dwellings. One infers that the tenants of these dwellings will have access to the whole of the site around the building itself. The only site held exclusively with each semi-detached dwelling is the area of land on which the dwelling itself is built. No car parks can therefore be accommodated on the “site”.
That might appear to be an unduly technical conclusion. However, even if there were some physical division of land to create an exclusive curtilage to each of the semi-detached dwellings, there is only provision for one car park for each of them, whereas the expectation of Council Wide Principle 44 and the associated table is that there will be two for each. That is not met by the proposal. It may be that that could be cured by providing additional car parking spaces adjacent to the proposed carports. However, given the relatively narrow frontage of the allotment, that would mean that the four car parking spaces would extend across the whole of the front of the allotment and there would be no scope for landscaping in front of the building. The potential for attractive landscaping is already limited under the current proposal by the dominance of the two carports in the area between the building and the allotment boundary.
Council Wide Principle 45 provides that all on-site car parking associated with the use of dwellings should incorporate one car parking space per dwelling covered or capable of being covered. The plan complies with that, but only at the expense of not being able to comply with the setback requirements mentioned above. If the setback requirements are complied with, Principle 45 cannot be complied with. There is no vehicle access to the rear of the allotment.
Council Wide Principle 27 provides that private open space for a three bedroom dwelling should be not less than 75 square metres. Without any division at the rear of the premises, there is no private open space for each dwelling. If one were to assume that such a space would be created, Mr Batge calculated that the amount provided in each case was approximately 71 square metres. It is not clear how that calculation was arrived at, but taking into account other requirements of the dimensions of such private open space, it seems to me that the space provided would be no more than 62.25 square metres. However, that is not all. As Mr Batge pointed out, a major issue with the assumed private open space relates to the design of the building and the poor relationship between the open space at the rear of each dwelling and the living areas contained within it. The living areas are located at the front of the building, with three bedrooms located in line along the passage leading to the rear door and the part of open space. It therefore has poor access from and relationship with the living areas of the dwellings, and even from the laundry, which is located in the centre of each dwelling, with access to the open space being along a 9.8 metre long passageway 900 millimetres wide.
Zone Principle 23 provides that semi-detached dwellings should generally have a minimum site area of 300 square metres. The site area for these dwellings, assuming a division of the rear yard, is 265.5 square metres. It also provides that a semi-detached dwelling should have a minimum frontage to a public road of eight metres. The frontage for each of these dwellings is 7.36 metres. As the Commissioner pointed out, in themselves, some of these failures may not be fatal to the proposal.
However, the Commissioner also had ample evidence as to the character of the locality. He concluded that, when that was taken into account, it could not be said that the intended type, design, and appearance of these dwellings was in any way consistent with principles of the development plan requiring a high standard of building design and site layout (Zone Principle 14(a)), a high standard of residential amenity (Zone Principle 14(c)), compatibility of the built form with existing dwellings in the locality (Zone Principle 18(b)), an attractive contiguous streetscape between building edges and kerb lines suitably landscaped (Zone Principle 18(h)), development which enhances residential amenity (Residential Development Principle 9(a)) and compliance with the requirements of Residential Development Principle 32. The Commissioner concluded:
[S]tripped to its bare essentials the design and appearance of the proposed development will in no way be compatible with the built form in the locality, does not exhibit a high standard of design and site layout, will detract rather then enhance residential amenity and will in no way contribute to an attractive contiguous streetscape.

There was ample evidence to justify those conclusions on the part of the Commissioner. Not only did the proposed development not comply in many respects with the essential requirements of the Development Plan principles, but in doing so it was also far from consistent with the character and amenity of the relevant locality. There are no grounds on which this Court could interfere with the conclusion reached by the Commissioner.
During the hearing of the appeal counsel for the respondent sought to tender a copy of an encumbrance relating to the land on which the respondent had sought rely in the Environment Resources and Development Court. It was said to be an encumbrance imposed by the developer of the area in which the land in question was located under which certain restrictions on the use of the land were said to be imposed as to the nature of dwellings that could be constructed and as to the type of construction which could be undertaken. The Commissioner refused to take the encumbrance into account. The tender was opposed by the appellant. I said I would rule on the tender in the course of deciding the appeal.
I have decided to reject the tender. The respondent filed no cross-appeal or notice of contention to the effect that the Commissioner wrongly failed to take the encumbrance into account. The encumbrance by itself if of no relevance to the question of whether there has been compliance or otherwise with the requirements of the development plan. Section 57 of the Development Act provides in certain circumstances for an owner of land to enter into a land management agreement with the Minister, a greenway authority or a council. Section 57(12) provides that the existence of such an agreement may be taken into account when assessing an application for a development authorisation under the Act. This encumbrance is not a land management agreement for the purpose of s 57. It derives no authority from that section.
An encumbrance of that nature may or may not be consistent with the several requirements of a Development Plan. A planning authority must be concerned only with the requirements of the Development Act, the Development Regulations and the relevant Development Plan. It is not for a planning authority to act as the enforcer of the provisions of such an encumbrance. That is a matter for the encumbrancee. The fact of an encumbrance might be of limited relevance if it were associated with evidence of the number and location of other allotments subject to the same encumbrance and evidence as to the extent to which compliance with it had been enforced. In those circumstances it might go to partial proof of the character and amenity of the locality. However, that is a matter for consideration on some future occasion. Proof of any such matters was lacking in the proceedings in the Environment Resources and Development Court. The encumbrance was not shown to be relevant in these proceedings.
In any event, as can be seen from the result of this appeal, the appeal can be decided quite conclusively in favour of the respondent without reference to the encumbrance.
There were no errors of fact made by the Commissioner, nor was it reasonably arguable that any such errors had been made. I refuse leave to appeal on any question of fact. In so far as the appellant has an appeal as of right on a question of law the appeal is dismissed.