Karytinos v Corporation of the Town of Walkerville
[2010] SASC 5
•22 January 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
KARYTINOS v CORPORATION OF THE TOWN OF WALKERVILLE
[2010] SASC 5
Judgment of The Honourable Justice Bleby
22 January 2010
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL - HERITAGE PROTECTION
Appeal from decision of Commissioner of Environment, Resources and Development Court upholding decision of Council to refuse Development Approval – appellant obtained Development Approval for outbuilding – building not constructed in accordance with approved plans – further application lodged in respect of additional features including parapet wall with castellations – Development Approval refused – whether Council treated second application as a variation to existing application or as fresh application – whether Commissioner gave insufficient weight to existing approval – whether Commissioner gave sufficient weight to those aspects of the development which did not conflict with the Development Plan – whether Commissioner failed to identify in what respect the proposal represented a variance from the Development Plan guidelines – whether Commissioner incorrectly relied on aesthetic and subjective judgments – whether Commissioner correctly applied the definition of “heritage value” – where necessary, permission to appeal on these grounds granted – permission to appeal on other grounds refused – appeal dismissed.
Development Act 1993 (SA) s 38, s 39, s 84, s 85; Environment, Resources and Development Court Act 1993 (SA) s 30, referred to.
Airport Farms Pty Ltd v District Court of Lower Eyre Peninsula (1997) 69 SASR 472; Chadha v City of Unley [2003] SASC 99, applied.
Karytinos v Corporation of the Town of Walkerville [2009] SAERDC 25, discussed.
Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259, considered.
KARYTINOS v CORPORATION OF THE TOWN OF WALKERVILLE
[2010] SASC 5Land and Valuation Division
BLEBY J.
Introduction
The appellant is the registered proprietor of a large residential allotment situated at 53 Dutton Terrace, Medindie. The principal building on the land is a detached dwelling known as “Sunbury”. The dwelling is listed as a local heritage place in the Walkerville Development Plan.
The land in question has a 41.83 metre frontage to the northern side of Dutton Terrace. Immediately to the east of the subject land at 55 Dutton Terrace is another detached dwelling and tennis court built over three much smaller allotments. That dwelling is on the north-western corner of the intersection of Dutton Terrace with Hawkers Road. The subject land has a secondary access via a driveway 4.6 metres wide and 24.38 metres long to Hawkers Road immediately to the north of the premises at 55 Dutton Terrace. Immediately north of the subject land and driveway, at numbers 47 and 49 Hawkers Road, are two smaller cottages identified as contributory items (sometimes called contributory places) in the Walkerville Development Plan. There are many other contributory items in the near vicinity, but these two are the only ones in the locality determined for the purpose of considering the application the subject of this appeal.
In December 2006 the appellant lodged a development application with the respondent Council for a “Garage with loft above”. At various stages in the development approval process it was described by the Council as “A detached two storey outbuilding located at the rear north-eastern corner of the site incorporating ground floor undercover carparking and upper level loft” and “2 Storey Garage & Storage Building”. The application was assigned the number 200/271/06 by the Council. Development Plan consent was issued in respect of some amended plans on 15 February 2007. Following the granting of Building Rules consent by a private certifier, final Development Approval was granted by the Council on 5 April 2007.
The outbuilding as shown in the approved plans featured a cruciform footprint with a projecting gable on each elevation. The ground floor area accommodated at least four cars. The total building width on its north and south frontages was 12.7 metres, and on the east and west frontages, 9.4 metres. On the north and south frontages there were centrally located projections of 1.4 metres with a width of 6.3 metres to give the building its cruciform shape. These projections extended to the full height of the southern and northern facades.
The gable height on the northern and southern facades of the building was 8.119 metres. The gables extended across the width of the two central projecting panels. On the eastern and western facades, the gables rose to a height of 8.492 metres and occupied the full width of those facades. The points of the gables rose from a wall height of 6.3 metres.
The new outbuilding was set back approximately 63 metres from the Dutton Terrace frontage of the land to the north-east of the residence and between 1.5 and 1.84 metres from the eastern boundary. It was 7.89 metres from the northern boundary.
The building was not constructed in accordance with the approved plans. Following neighbour complaints, council officers became aware that a parapet wall with castellations had been added to the southern elevation of the outbuilding without Development Approval. As built, the parapet wall and castellations occupied the whole of the central panel of the southern frontage, with a width of 6.3 metres, and with returns on either side covering the 1.4 metre projection. The height of the parapet wall and castellations and the returns was 9.7 metres, or an increase of between 1.6 and 3.4 metres above the previously approved southern gable roof. The faces of the walls were in stone with quoins and the rather elaborate castellation in red brick. These materials were different from the remaining walls of the structure.
At the request of council officers, the appellant lodged a development application described as “Variation to Development Application 200/271/06 for parapet to outbuilding” (“the second application”). The accompanying plans related principally to the construction of the parapet wall but included two sets of double windows towards the centre of the southern facade, where previously there was only one set. The height of the windows had been reduced from those in the approved plans. There was also shown to be a lowering of a window on the southern elevation closest to the eastern boundary of the site from 1.7 metres above finished floor level to 1.2 metres above finished floor level. There was also a decorative louvre feature above the centralised windows. The plans complied with the as-built nature of the southern facade.
There were also other features of the building as built which differed from the plans the subject of the original development consent but which were not the subject of the second application. The evidence before me is insufficient to describe every variation, but they appear to include the following:
·Differences in window sizes and locations, including eight single windows along the upper level of the northern elevation, compared to four double windows on the approved plans, together with a full glass wall leading to the upper level balcony, where smaller glass windows were shown on the approved plans;
·The two south-facing windows in the centre of the southern facade on the upper level do not include obscured glass as was indicated on the original plan;
·Internal walls have been erected on the first floor level to create three internal rooms, where the approved plans show a single open area to be used as a “storage attic”;
·An internal fireplace has been built at the upper level.
There is also some question as to whether the upper level balcony in the south-western corner of the building was included in the provisional Development Plan consent.
I will in due course make some further observations about these other variations. However, the only application dealt with by the Council and which became the subject of a subsequent appeal to the Environment, Resources and Development Court (“the Environment Court”) related to the southern facade of the building, as mentioned above.
On 17 July 2008 the Council refused to grant Development Plan consent, and hence Development Approval, to the second application.
The appellant appealed to the Environment Court. On 1 May 2009 a Commissioner of the Environment Court dismissed the appeal and upheld the decision of the Council.[1]
[1] Karytinos v Corporation of the Town of Walkerville [2009] SAERDC 25.
The appellant now appeals to this Court against the decision of the Environment Court.
The nature of the application for consent
This was not an application to the Council for Development Plan consent for an addition or alteration to an existing development. In such a case the extent of any alleged variance from the requirements of the Development Plan as proposed must be judged against the fact of the lawful existence of the original development.[2] Although the second application purported to be an application for variation to the previous Development “Application”, it could not be strictly so, as that application had been dealt with and finalised. It is unclear whether the Council considered that it was an application to vary the existing Development Approval under s 39(6) of the Development Act 1993 (SA). No reference was made to that sub-section or to the requirements of sub-ss (7) or (7a), either by the Council or by the Environment Court.
[2] See Courtney Hill Pty Ltd v South Australian Planning Commission (1990) 59 SASR 259.
The original application appears to have been treated as a Category 2 application,[3] but was dealt with by officers of the Council under delegation following withdrawal of the only objection to the application and following advice from the Council’s heritage adviser that the building was considered appropriate for the site. The second application was also treated as a Category 2 application and attracted a greater number of objections.
[3] See Development Act 1993 (SA) s 38.
The better view would appear to be that the second application was treated by the Council as a fresh development application. It was given a new number. Properly construed, I consider that it was a fresh application for Development Plan consent based on the previously approved plans subject to the variations identified in the second application.
It was an application of the type considered by Debelle J in Airport Farms Pty Ltd v District Council of Lower Eyre Peninsula.[4] In that case development approval had been granted to construct a single storey timber framed dwelling subject to a number of conditions. The dwelling was not constructed in accordance with the development consent. Instead, it was constructed as a two-storey dwelling, being one substantially different in height and in area from that in the first application, in a different location and requiring variation to the conditions of the initial development consent. Although the application to the Council described the proposed development as “Additional undercroft and decking” and purported to be an application under s 39(6) of the Development Act, the Council, as was held by Debelle J, correctly treated it as a fresh application, being one that was for a “substantially different building in height, area and bulk with other features which impacted directly on [a] sand dune”.[5]
[4] (1997) 69 SASR 472.
[5] Ibid 478.
Likewise, in this case, the second application was materially different from the original application to which consent had been given. It was justifiably treated by the Council as a fresh application. Even if it were properly treated as an application under s 39(6), a similar approach would have been necessary. Chadha v City of Unley[6] was a case where a partly constructed building was the subject of an application to vary the Development Approval to allow a very different building from that approved where the Environment Court was held correctly to have assessed the proposed dwelling as varied against the requirements of the Development Plan. The consequence of treating this application as a fresh application or as an application to vary the existing approval was that the structure as a whole, including the parapet wall, was required to be considered against the requirements of the Development Plan, as indeed it was by the planning and heritage witnesses who gave evidence and by the Commissioner of the Environment Court. As a result, the Commissioner only afforded “moderate weight” to the existing Development Approval.
[6] [2003] SASC 99.
Perhaps more importantly, the application was not to be regarded as an incremental variation to an existing approved development. Neither counsel before me sought to treat it as such. It was the development as a whole which had to be considered.
The Commissioner’s decision
After describing the subject land and the principal residence erected on it and classified as a local heritage place in the Development Plan, and after describing the development proposal, the Commissioner discussed the relevant locality, the criteria for which were based on visual amenity and perception of character. There was no argument as to the extent of the relevant locality. It was located entirely within the Medindie Historic (Conservation) Policy Area 5 (“Policy Area 5”) described in the Development Plan. The Commissioner summarised the evidence of the planning and heritage expert witnesses as to the description of the locality and of the development within it.
The Commissioner directed himself as to the proper approach to the assessment of the application, as to which there was no criticism on this appeal. He noted that the as-built form of the development departed from the plan to which Development Plan consent had originally been given and from the present application, creating some confusion as to precisely what it was that the appellant was seeking approval for. However, he correctly concluded that those other aspects were not before him, and that it was the “southern elevation wall and parapet, windows, including vents and material changes” that were the focus for merits assessment, not “minor siting variations, changes to other elevations or considering of the approved or actual use made of the outbuilding”.
The Commissioner identified the two key issues relevant to the resolution of the appeal. They were what he described as the impact of the development on heritage values of Sunbury itself and the adjacent contributory items, and its impact on character and amenity of the locality, including streetscapes and adjoining properties. As will be seen, the reference to “heritage values” of Sunbury and the contributory items was misplaced, but in the circumstances did not amount to a miscarriage.
The Commissioner then quoted what he considered to be relevant guides in the Development Plan in respect of heritage considerations. These were not limited to the questions of heritage value. They were extracted from the Statement of Heritage Value, Objectives and Principles of Development Control relating to Policy Area 5, the Desired Character, Objectives and Principles of Development Control in respect of the Council’s Residential Zone and the Council Wide provisions of the Development Plan. Not all of the extracts were relevant to this development other than as part of a wider contextual framework. Some relevant passages were omitted, but were relied on later in the Commissioner’s reasons.
In relation to heritage considerations the Commissioner made some preliminary observations to the effect that the development would not significantly negatively affect the heritage value of Sunbury itself, but would have an adverse effect on the two contributory places located at 47 and 49 Hawkers Road from where, in front of those dwellings and relatively close to them, the outbuilding was clearly visible. He agreed with the assessment of three of the witnesses that the building’s “form, height, detailing and appearance are inappropriate and insufficiently visually compatible with that of the single storey contributory items at 47 and 49 Hawkers Road or … the heritage character of the Hawkers Road streetscape”. It did not “conserve the heritage setting or complement key elements of heritage values – particularly form and appearance”.
The Commissioner then quoted what he considered to be guides in the Development Plan relevant to considerations of character and amenity by reference to the Objectives, Statements of Desired Character (where appropriate) and Principles of Development Control in respect of each of Policy Area 5, the Council’s Residential Zone, the Council Wide provisions and the Metropolitan Adelaide provisions of the Development Plan. He made some preliminary observations as to character and amenity. He considered that there were certain shortcomings relating to privacy of adjoining owners, but that, if necessary, that could be cured by the imposition of conditions. He considered that overshadowing was not sufficient to raise any concern. Although he considered the visual impact acceptable from Dutton Terrace, there were matters of major concern in respect of the visual impact from Hawkers Road. This concern was not overcome by landscaping on the eastern boundary.
The Commissioner concluded that the application failed on both the key issues he had earlier identified. He said:
I conclude that the variations represent an adequate, visually compatible solution from the Dutton Terrace frontage and to Dutton Terrace properties, and an adequate, compatible proposal with respect to the Local Heritage Place and its values located on the subject land. However, I conclude that it will have a negative effect upon and will dominate the Hawkers Road public realm and streetscape, negative effects to adjoining residential properties to the east and the north with respect to visual amenity and character not in keeping with that desired and not be compatible with or conserve the setting of the Contributory Places to the north on Hawkers Road. It will not complement the heritage values of those places.
The Commissioner identified a number of provisions of the Development Plan in respect of which the development was at some variance, one of which was clearly inappropriate and appears to have been an error. He continued:
I acknowledge endeavouring to balance up the positives against the negatives, the advantages and the disadvantages, and that the crucial aspect of this decision rests on aesthetic and subjective judgments having regard to the Development Plan guidelines. I cannot resile from significant reservations about the proposal with respect to visual amenity impacts to the east and north, and negative impact on the character of Hawkers Road and on Contributing Places. These carry significant weight.
On balance, I conclude that the proposal does not sufficiently comply with the Development Plan as a whole and that it is not worthy of Development Plan Consent. I do not make that decision lightly, particularly having regard to the potential consequences for the appellant. In simple terms, I consider that the proposal is out of the ordinary, a shock and a jarring element in the locality and not sufficiently consistent with numerous Development Plan guidelines and the spirit and intent of them. In general, I agree with the conclusions of the respondent’s witnesses and prefer those to that of the appellant.
The Development Plan
It is convenient to record some of the more significant provisions of the Development Plan as they relate to the two key issues identified by the Commissioner and to the issues on this appeal. From the METROPOLITAN ADELAIDE section of the plan the following sections are relevant:
Objective 9: Safe, pleasant, convenient and efficient residential zones.
Achievement of this objective can be assisted by development that is well designed, and which maintains and where appropriate, enhances the residential character and amenity of the area into which it is to be sited. Residential development that is well designed takes into account factors such as building bulk and materials, privacy and access to sunlight. …
Objective 33: The conservation of land, buildings and their settings, which are of …, non-indigenous … heritage displaying aesthetic, architectural, [or] historic, … value.
Objective 43: The amenity of localities not impaired by the appearance of land, buildings and objects.
Principles of Development Control:
9Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.
In the COUNCIL WIDE provisions of the Development Plan the following are relevant:
Objective 5: Compatibility of development with the desired character of the area in which it takes place.
The statement of Heritage Value:
The heritage value of a contributory item is primarily the principal façade of the building and contiguous elements such as verandahs, porticos and the side wall returns that can be seen (all or in part) from a public road.
Objective 23: Conservation of the setting of heritage places.
Objective 24: Design of quality in respect of the appearance of development.
Principles of Development Control:
46Development should not reduce the value of sites of … heritage … importance, ….
56Development on land adjacent to a heritage place or a contributory item should be visually compatible with the heritage place or contributory item. It is not necessary to replicate historic detailing, however design elements that should be compatible include, but are not limited to:
(a) scale and bulk;
(b) width of site frontage;
(c) boundary setback patterns;
(d) proportion and composition of design elements such as rooflines, openings, fencing and landscaping;
(e) colour and texture of external materials.
57The development of carports, garages or other outbuildings involving a heritage place or contributory item should:
(a) be single storey and located behind the main face of the principal building and should be predominantly freestanding;
(b) be designed to ensure garage doors do not visually dominate the primary street frontage of the place or the main face of the principal building;
(c) not necessarily replicate or mimic the historic detailing, decorative elements and ornamentation of the heritage place or contributory item; and
(d) not involve or incorporate undercroft parking where this will be visible from the street.
[It should be noted that Principle 57 is not limited to a consideration of a heritage place or contributory item with which the development is associated or which is on the same allotment.]
80 Building development should be located and designed in respect of its:
(a) height;
(b) size;
(c) …;
(d) form;
…
consistently with the desired character described by the objectives and principles of development control for the zone in which it is situated, or otherwise, the predominant character of other buildings in the locality.
In the RESIDENTIAL ZONE provisions of the Development Plan the following are relevant:
Background Statement - Medindie:
Subject to the careful consideration of the impact on heritage places and contributory items, the main objective will be to ensure that any new built form complements the streetscape appearance, scale and siting of heritage places and contributory items in the locality of the particular development site.
Statement of Desired Character:
Careful attention to local factors and attributes (which may include more than one Policy Area in a locality relevant to a development site) is necessary in the design and siting of further residential development. This is particularly relevant to development adjacent a boundary of a Historic (Conservation) Policy Area and development adjacent to a State or local heritage place or a contributory item.
…
In Historic (Conservation) Policy Areas, the references to the 'Desired Character' relate primarily to that which prevails in the particular suburb, although it is accepted that there are variations in particular streets in the same Policy Area which will influence what form of development is appropriate in a particular street. For example, while large single storey detached dwellings of heritage value on spacious allotments may represent the prevailing built form and the Desired Character of new development, the historic built form in a particular street in the same Historic (Conservation) Policy Area may in fact have smaller allotments and a closer siting of buildings. In that case a variation from the stated Desired Character in terms of density and building set backs may be acceptable, provided other design elements such as complementary roof form, eave heights, verandahs and overall streetscape appearance do not detract from the character of the relevant locality.
Objective 3: Development designed in context with the positive features of the locality and in accord with the specific policy area provisions.
Principles of Development Control:
2Development should reinforce the existing streetscape and desired residential character having regard to the provisions of the policy areas and exhibit architectural forms and styles which complement the positive characteristics of buildings in the locality.
9Development should demonstrate a compatible visual relationship with heritage places and contributory items in the locality of the development site through compatible design in relation to the following:
(a) bulk and scale;
(b) …;
(c) proportions and vertical and/or horizontal emphasis;
(d) the form and level of visual interest as determined by length and size of unbroken walling, treatment of openings and depths of reveals, roofline and silhouette, external colour and texture of materials used as well as detailing (without excessive use or mimicry of historic decorative elements and ornamentation), landscaping and fencing.
12Roof pitch and finished roof height should be consistent with the principal roof pitch and finished height of any adjacent heritage place or contributory item. Where that circumstance does not apply, the use of appropriately pitched roofs to visibly reinforce the prevailing character of historic roof forms should be incorporated in the development rather than mono-pitch of flat roof forms.
The following extracts are relevant from that section of the plan relating to POLICY AREA 5:
Statement of Desired Character:
Single storey dwellings and single storey additions will prevail in those streets where that is the dominant character of established residential buildings, although two storey elements may be appropriate where such elements are confined to the rear of a building or within the roof space such that the principal elevation to a public road appears as single storey.
…
Garages and carports should not dominate the principal elevation of any dwelling or the streetscape as viewed from a public road.
Objective 2: Development that enhances and complements the historic character derived primarily from large detached dwellings of one and two storeys set within landscaped grounds.
Principles of Development Control:
1Development should be consistent with and reinforce the Desired Character of the Medindie Historic (Conservation) Policy Area.
Consideration of the grounds of appeal
Ground 1 - Insufficient weight was given to the existing approval
I have already touched on this aspect in discussing the nature of the application before the Council and on appeal before the Environment Court. The Commissioner accepted that the existing approved outbuilding was a relevant factor and afforded it what he described as “moderate” weight. It is clear that in fact he did so at various points in his reasons. As a preface to the identification of the two key issues he took into account the development variations “in conjunction with the approved building”. In considering that he was satisfied that the proposed wall and parapet changes to the southern elevation of the building would not significantly negatively affect the heritage value, he said so “in the context of the existing approval and having regard to the various Development Plan Guidelines” which he had identified, as well as the evidence of the expert witnesses. In considering overshadowing issues he took into account what had previously been approved by the Council.
In a similar situation Debelle J said, in Chadha v City of Unley:[7]
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.
[7] Ibid [10]-[11].
In the end, the development as approved with the addition of the southern parapet wall and other incidental features was what had to be considered by the Council and the Commissioner. The weight to be given to the earlier approval by the Council could only be very limited. The Commissioner did not err in giving it the weight he did.
Grounds 2 and 3 – Failure to give sufficient weight to those aspects of the development which did not conflict with the Development Plan
The Commissioner made findings in the appellant’s favour on what he described as the “positive aspects of the proposal”, namely that it represented an adequate and visually compatible solution from Dutton Terrace, other Dutton Terrace properties and with Sunbury as a local heritage place. The complaint is that he allowed that to become subservient to the negative impacts on adjoining properties to the east and north east and in particular the failure to complement the heritage values of the contributory places at 47 and 49 Hawkers Road. It is further said that the Commissioner failed to explain his conclusion.
In my opinion the reasons for this conclusion emerge from a consideration of the Commissioner’s reasons as a whole. The Commissioner was concerned about the negative impact on the contributory items identified at 47 and 49 Dutton Terrace. As will be seen, there was justification for that conclusion. However, that was not the only reason. The Commissioner was equally concerned about the adverse impact of the development on the character and amenity of the locality, particularly as viewed from Dutton Terrace and the adjoining and nearby properties. In the end it was a matter for the Commissioner as to the weight that he gave to those various factors and a matter for his own planning judgment.
Ground 4 – Failure to identify in what respect the proposal represented a variance from the Development Plan Guidelines
This criticism relates to the point in the Commissioner’s conclusion where he identified a number of Development Plan guidelines from which the proposal was said to represent some variance. He listed them without describing them further. Most, but not all, had been earlier set out by the Commissioner in his reasons in identifying the guidelines relevant to the two key issues. The list did not purport to be exhaustive. It included most of what I have cited as being relevant to the issues. Some, I accept, were of marginal relevance.
Nevertheless, the basis on which the Commissioner decided that the proposal was unsatisfactory is clear. He accepted the opinions of those witnesses who considered that the development was incompatible with the contributory items and who considered that the development impaired the character and amenity of the locality. He had earlier given reasons for accepting those witnesses. There is no evidence that the Commissioner misdirected himself by virtue of any mistaken or irrelevant reference to particular provisions of the Development Plan.
One of the references criticised was to Residential Zone Principle 12 quoted above. It was criticised on the footing that the existing roof pitch and roof height of the outbuilding had already been assessed and approved by the Council and could not be the subject of further debate in the current proceedings. I reject that criticism. The parapet materially affected the roof profile of the building when viewed from ground level in any direction. It was a relevant consideration. The appellant also criticised the reference to Council Wide Principles 56 and 57(c) to the effect that replication of historic detail is not required. However, that is only one aspect of those two principles. Principle 56 is highly relevant to a consideration of development on land adjacent to a contributory item and visual compatibility of the development with the contributory item. Principle 57 specifically relates to garages and other outbuildings “involving” a contributory item. There were clearly aspects of these two principles with which the Commissioner considered the development did not comply.
Finally, there was criticism of the reliance on Metropolitan Wide Objective 33 as encouraging “the retention of buildings and vegetation of conservation significance in a Metropolitan Wide context” and as being “irrelevant to an assessment of the parapet which involves a minor addition to the existing outbuilding”. That is a misreading of Metropolitan Wide Objective 33. It requires the conservation of land, buildings “and their settings” which are of non-indigenous heritage displaying one or more of a number of qualities, including aesthetic, architectural or historic value. As such it was a materially relevant consideration.
I consider that ground 4 is not made out.
Ground 5 – That the Commissioner incorrectly relied on aesthetic and subjective judgments
This ground relates to the statement to that effect included in the Commissioner’s reasons for conclusion quoted above. In oral argument it was broadened to include an argument that the Commissioner had misconstrued the Development Plan.
Earlier in his comments after identifying the relevant heritage considerations in the Development Plan, the Commissioner noted that the development was clearly visible in the same viewing plane from in front of the contributory items located at 47 and 49 Hawkers Road, and was relatively close to them. That was not so from every point at which one could view the contributory items, but it was true from a number of significant viewing planes from points to the east and north-east of the development. The Commissioner noted the opinion of the witness Ms Willis that:
The strong architectural form of the parapet wall, together with its overall height, creates a dominating structure … inappropriate … to the Contributory Items in the locality, particularly 47 Hawkers Road.
The Commissioner continued:
Ms Willis also noted its dominating affect on Hawkers Road and dwellings thereon. I agree with that assessment. That was also the assessment and conclusions of Ms Nolan and Mr Rolfe. Its form, height, detailing and appearance are inappropriate and insufficiently visually compatible with that of the single storey contributory items at 47 and 49 Hawkers Road or as will be seen later the heritage character of the Hawkers Road streetscape. It also does not conserve the heritage setting or complement key elements of heritage values – particularly form and appearance.
Mr Hayes QC, counsel for the appellant, argued that questions of “form, height, detailing and appearance” are not relevant criteria mentioned in the Development Plan. He also argued that the last sentence was wrong as a matter of construction of the Development Plan. He pointed out that the heritage value of a contributory item was defined in the Council Wide Objectives as “primarily the principal facade of the building and contiguous elements such as verandahs, porticos and the side wall returns that can be seen (all or in part) from a public road”. He argued that this development did not affect the principal facade of either of the houses in questions or their contiguous elements. Neither it did. He argued that the Commissioner had failed to apply the definition of heritage value in making the assessment that he did.
However, reliance by Mr Hayes in that manner on the definition of heritage value is misplaced. The expression is used only in those parts of the Development Plan which refer to alterations to contributory items themselves.[8] The Principles relied on by the witnesses and the Commissioner in relation to the contributory items were other principles which do not mention heritage value. Those principles include the Residential Zone Background Statement concerning Medindie, the Residential Zone Statement of Desired Character, Residential Zone Principle of Development Control 9 and Council Wide Principles of Development Control 56 and 57. Those Principles do not rely on heritage value at all. They relate to the visual compatibility of the development with contributory items, with particular reference to the features mentioned in those provisions.
[8] See, for example Council Wide Principle of Development Control 55, Residential Zone Principle Development of Development Control 8.
True it is that the Commissioner, in identifying the two key issues referred to “impacts on heritage values”, but it is clear from the subsequent discussion that he intended a much wider consideration of the effect of the development on the heritage place and on the contributory items. It was not inappropriate for him to refer in the course of that discussion, as he did, to whether the development “complemented key elements of heritage values”, namely the principal facades of the contributory items, or that it would “not complement the heritage values” of the contributory items.
Considerations of complementarity and compatibility necessarily require a consideration of features of the proposed development such as form, height, detailing and appearance. Indeed, some of those expressions are actually mentioned in parts of the Development Plan cited above. There was no error on the part of the Commissioner in the interpretation, construction or application of the Development Plan.
It was against that background that the appellant argued that the Commissioner had therefore relied on aesthetic and subjective elements in reaching the conclusion he did. If that was all the Commissioner relied on, there might be some substance in the appellant’s argument. The implication from the submission was that the Commissioner decided the question solely on the basis of the Commissioner’s personal values and assessment of the aesthetics of the development. If he had done so he would clearly have been in error. However, he did not.
The statement by the Commissioner that the decision rests on aesthetic and subjective judgments was immediately qualified by the words “having regard to the Development Plan guidelines”. It is those guidelines which he identified against which he made his planning judgment.
An assessment of the effect of a development on the character and amenity of a locality undoubtedly involves an aesthetic judgment. The explanation following Metropolitan Adelaide Objective 43 provides:
A city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. If the city dweller is to enjoy looking at his surroundings, attention must be given to the aesthetic qualities of both natural and man-made features. The design of individual buildings should be of high standard and related to adjacent buildings.
[Emphasis added]
The same word is used in Metropolitan Adelaide Objective 33.
Any requirement, such as appears in numerous parts of the Development Plan, that requires an assessment of compatibility with a heritage place, a contributory item or a desired character, or which requires that a development complement or not detract from a heritage value can be said to require an aesthetic judgment. Provided that that judgment is made by reference to property identified criteria contained in the Development Plan and not arbitrarily, the obligation on the Planning Authority will be properly fulfilled. It is clear that it was in this case.
The bulk of the building, including the parapet wall, its form, its appearance and its proximity to the contributory items were all matters that the Commissioner could and did properly take into account.
I agree with the submission of Mr Roder SC, counsel for the respondent, that the issues came down to the contest about whether the development was sufficiently compatible, in a visual sense, with the contributory places, with the streetscape, and whether the amenity impact on the neighbouring premises at 55 Dutton Terrace and 47-49 Hawkers Road was acceptable or not. That was a matter of planning judgment in the assessment of the requirements of the Development Plan.
In my opinion this ground is not made out.
Ground 6 – The Commissioner erred in basing his decision on his view that the proposal is out of the ordinary, a shock and a jarring element in the locality
As is apparent from the foregoing, I accept the respondent’s submission that the planning judgment was supported by a substantial body of expert evidence. The Commissioner also had the advantage of viewing the completed development himself. When commenting on the visual impact of the development in the course of his reasons the Commissioner said:
However, the proposed (and “as-built”) appearance, to adjoining residential properties particularly to the north (for example, rear of 47 and 49 Hawkers Road) and to the east (for example, 55 Dutton Terrace) including those opposite to the east (front yards of Nos. 64-70 Hawkers Road), as well as from the Hawkers Road public street realm for distances in the order of 70 metres or so (north and south along the eastern footpath), takes on much more significance, due to its direct visibility from many vantages and its height, bulk and crenellated silhouette. On the evidence, and on my assessment, it would negatively affect visual quality/amenity of several Hawkers Road properties and of the Hawkers Road public realm and streetscape, and I find it to be out of scale and character due to its size and form with the predominant character of the locality and the Hawkers Road streetscape and visually incompatible. In this I agree with the assessments of Ms Nolan and Mr Rolfe, and not of Mr Bills, who appeared to rely too heavily on the prior approval and took insufficient account of visual impacts to adjoining properties to the north and east, and to the Hawkers Road streetscape.
That conclusion was open to the Commissioner. There was no error in the approach he took.
Ground 7 – Failure to place reliance on the proposed landscape screening
The question of screening related particularly to the area between the development and the eastern boundary of the property. The Commissioner addressed the question of screening and was not satisfied that it would effectively deal with the problems, even in relation to the amenity of the premises at 55 Dutton Terrace. Some trees had been planted but they were deciduous, and the only expert who was familiar with the species indicated that they might grow to 7 metres if conditions suited. It was open to the Commissioner to find that screening would not overcome the variance of the development from the requirements of the Development Plan.
Grounds 8 and 9 – The Commissioner’s understanding as to what was the subject of the Council’s approval
I have already referred to the Commissioner’s reference to confusion during the course of the hearing. That was brought about because it was apparent that the application did not conform with the building as constructed. Any confusion as to the nature of the application and the appeal was resolved by the tender, during the course of addresses before the Commissioner, of amended proposal plans relating solely to the southern facade of the building. It is apparent that whatever confusion there might have been during the course of the hearing had no impact on the ultimate decision of the Commissioner.
Conclusion
None of the grounds of appeal succeed. The Commissioner’s decision was based essentially on planning issues. I respectfully adopt another passage from the judgment of Debelle J in Chadha v City of Unley:[9]
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.
[9] [2003] SASC 99, [16].
The only grounds that could be said to raise questions of law were grounds 4 and 5. In respect of those grounds there was an appeal as of right.[10] In respect of grounds 1, 2 and 3 I grant permission to appeal. In respect of grounds 6-9 inclusive I refuse permission to appeal. In respect of those grounds where permission has been given and where there is an appeal as of right the appeal is dismissed.
[10] Environment, Resources and Development Court Act 1993 (SA), s 30(2).
Postscript
At the outset of the hearing of this appeal I expressed concern that it appeared that the application for Development Approval the subject of this appeal did not include a number of matters for which Development Plan consent had not been given on the first application and which were not the subject of this application, but which appeared to have been included in the as-built development. I was informed that there was some dispute as to what the Council had approved on the first application.
What had been approved at the stage of Development Plan consent was clearly set out in the form of the Development Plan consent dated 15 February 2007 and in the form of final Development Approval dated 5 April 2007. Each form provided, by way of introduction to the conditions:
1.Development is to take place in accordance with the ground floor plan issued 18 December 2007 the amended site plan and prespective elevation drawing received by Council on 13 February 2007 and amended elevation drawings and upper floor plan received by Council on 15 February 2007 and all details relating to Development Application No. DA200/271/06 except as modified by any conditions attached to this Planning Decision Notification.
Reason: To ensure the development proceeds in accordance with this approval.
Not all of that material was before me, and I am unable to make any assessment of the degree of compliance or non-compliance with those documents. However, Mr Rolfe, who was employed by the Council at the time, who gave evidence before the Commissioner and who made a number of inspections of the site gave evidence of a summary of the apparent variations for which consent had not been given and which were not the subject of this application. I have mentioned those items earlier in this judgment.
If Mr Rolfe’s evidence is correct, and although it does matter in view of the result of this appeal, it could have serious implications for the disposal or otherwise of such an application by the Council, on appeal to the Environment Court and on further appeal to this Court.
If this appeal had been allowed and other non-approved features of the development remained, it is not difficult to conceive of a number of possible consequences. The Council, having refused approval and having had its decision reversed on appeal, might well choose to take enforcement action under ss 84 or 85 of the Development Act, resulting in possible demolition of the development, thus rendering the appeal process in relation to the second application nugatory. Alternatively, an unscrupulous developer, having deliberately and successfully sought approval on the second application to rectify only one of the non-approved features of the development, might well seek to use that approval as a lever to gain approval on a later application to have the Development Approval conform to the as-built development. The use of such incremental processes might well alter the category of development assigned to the total development under s 38 of the Development Act to a series of applications with less demanding categories to achieve the same end. In the further alternative, it might lead, in appropriate circumstances, to the unscrupulous council officer turning a blind eye to unauthorised variations to an otherwise approved development.
Whatever may be the reason for an incomplete application, it would appear that the process of the Environment Court and of this Court on appeal is being abused or is likely to be rendered nugatory simply because the Court is being asked to give its approval to a development which the developer knows is not in accordance with reality.
In this case it is clear that, at least in respect of the southern parapet wall, the developer proceeded with the development well knowing that he did not have approval. That must raise similar questions about other aspects of this development which may well not be the subject of any approval. Some of those aspects, if true, are more serious than merely the number or design of windows. They would appear to go to the design, both internal and external, of the structure itself and a possible change of use of the building from that approved.
There is some suggestion that the Council was unaware of other non-conforming aspects of the development until it engaged in the process of preparation for the hearing of the appeal in the Environment Court. However, those issues having been raised in the Environment Court, the Commissioner was persuaded to proceed with the hearing of the appeal, limited as it was to only one non-approved aspect of the development.
If there were other non-approved aspects of the as-built development, the appeal in that form was an abuse of process of the Court. In the interests of the integrity of the Court’s own process and to ensure the honesty and integrity of developers in their engagement with the Development Approval process, the Environment Court should have declined to proceed with the hearing of the appeal unless and until it was satisfied that all non-approved aspects of the as-built development were or had been the subject of the application before the Council and were therefore properly before the Court.
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