Kellie v City of Burnside - [2005] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
KELLIE v CITY OF BURNSIDE & ANOR
Judgment of The Honourable Justice Besanko
23 February 2005
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
Appeal against order made by Commissioner of the Environment, Resources and Development Court - Appellant made an application to the respondent council for provisional development plan consent for the construction of four two-storey group dwellings - application refused on the ground that the proposed development was not consistent with the council's Development Plan, as the proposed development was incompatible with the scale and streetscape character of the locality and would have an unreasonable impact on the amenity of the locality - Commissioner dismissed appellant's appeal - whether Commissioner erred in law in placing no weight on the character of land to the north of the proposed development - whether Commissioner erred in fact in not finding that the locality of the proposed development included residential flat buildings to the north of the proposed development - whether Commissioner erred in law in distinguishing between the locality of the proposed development generally and the "residential locality" for the purposes of assessing the compatibility of the proposed development with its locality - whether Commissioner erred in law in construing the Development Plan provisions relating to the compatibility of the proposed development with its locality as requiring adherence to the "typical arrangement of properties" in the locality - whether Commissioner erred in fact and law in placing no weight or insufficient weight on the existing development of four semi-detached dwellings within the locality and the effect of that development on the character of the locality - whether Commissioner erred in law in having no regard to a Principle of Development Control in construing the requirements of the Development Plan - whether Commissioner erred in law in construing the Development Plan as limiting the location of "more closely spaced housing" to residential zones other than the zone in question - appeal dismissed.
Environment, Resources and Development Court Act 1993 s 30, referred to.
Maria de Fazio v City of Burnside (ERDC 319 of 1997), considered.

KELLIE v CITY OF BURNSIDE & ANOR
[2005] SASC 63
Land and Valuation Division

BESANKO J: This is an appeal against an order made by a Commissioner of the Environment, Resources and Development Court (“the ERD Court”) on 11^th June 2004. The appeal to this Court lies as of right on a question of law and by leave on a question of fact (s 30(2) Environment, Resources and Development Court Act 1993). The appellant filed a notice of appeal containing eight grounds of appeal. A Judge of this Court gave leave to appeal on a question of fact in relation to ground 2 and he refused leave to appeal in relation to the other grounds insofar as they raised questions of fact. The Judge made an order striking out ground 7.
The application and the locality
Ms Lynette Kellie is the appellant before me and she was the appellant before the Commissioner. She made an application to the City of Burnside (“the council”) for provisional development plan consent for the construction of four two-storey group dwellings at 6 Gilles Road, Glen Osmond, South Australia. I will refer to this as the proposed development. On 26^th August 2003 the council refused consent for the proposed development which it described as “four two-storey group dwellings including pool, detached garages and masonry fencing”. The grounds of refusal were that the proposed development was not consistent with the provisions of the City of Burnside Development Plan, and in particular, it was incompatible with the scale and streetscape character of the locality and it would have an unreasonable impact on the amenity of the locality.
The appellant appealed to the ERD Court. The conciliation conference did not result in a compromise, and the appeal proceeded to a hearing before a Commissioner of the Court. Mr Brian Beames had lodged a representation opposing the proposal, and he was joined as a party to the appeal. He appeared by counsel before the Commissioner.
The council is the first respondent to the appeal and Mr Beames is the second respondent. Mr Beames did not appear on the hearing of the appeal before me, and I was told by counsel for the council that he did not wish to participate in the appeal.
The Commissioner heard evidence from planning experts, an expert in the field of traffic engineering, a landscape architect and arborist, and the architect of the proposed development. The Commissioner also heard evidence from Mr Beames. On 11^th June 2004 the Commissioner made an order dismissing the appeal.
As I have said, the proposed development involves the construction of four dwellings on the land at 6 Gilles Road, Glen Osmond. I will refer to this as the site. The site fronts onto Gilles Road. Dwellings one and two are located to the front of the site and are mirror images of each other, and dwellings three and four are located to the rear of the site and are also mirror images of each other. Dwellings one and two have a total floor area of 222 square metres each and dwellings three and four have a total floor area of 216 square metres each. Each dwelling has a double garage under the main roof and dwellings three and four have a single visitor car parking space located in the front of the garage area in a “tandem” arrangement. The proposed development envisages that visitor parking for dwellings one and two will take place on Gilles Road. Access to the site is provided by means of a common driveway 6 metres wide at the Gilles Road crossover tapering down to 3.5 metres further within the site. The driveway was designed to include a manoeuvring area adjacent to dwellings three and four which it is said should allow vehicles associated with these dwellings to exit the site in a forward direction. The common driveway has an area of approximately 280 square metres. The site has an area of 1923 square metres with a frontage of 30.48 metres and a depth of 63.09 metres. The planning expert called by the appellant said that the properties located immediately to the east and west of the site have exactly the same area and configuration.
The site presently has on it a large partly two-storey detached dwelling which is about 50 years old. There is a tennis court in the rear yard with a high hedge to the west and south of the tennis court.
To the north of the site there is a nursing home, residential flat buildings and a school for both primary and secondary students. The nursing home and the school consist of large buildings which the Commissioner noted were surrounded by little open space in the west but with the reverse occurring up the hill towards the school’s playing fields in the east. The Commissioner said that Gilles Road, while not shown as such on the Burnside (City) Structure Plan, exhibits characteristics of a “major crossing” or “collector road”. It is a bus route.
The area to the south of the site is a residential area which the Commissioner described in the following way:
“… in the main large lots, large detached houses, large front yards, laid out on a grid. Most dwellings in the block formed by Portrush Road, Gilles, Pridmore and Day Roads, are about five to eight decades in age; those either side of the site being bungalows of the 1920/30 era and of the ‘gentleman’s residence’ variation. Some of the dwellings within the block are two-storeyed. Two doors east of the site are four dwellings into semi-detached pairs. The area epitomises the mature, leafy suburbia of the eastern suburbs.”
I turn now to the Commissioner’s reasons for dismissing the appeal.
The Commissioner’s reasons
The Commissioner found that Gilles Road forms what he called a district demarcation between the area to the north and the area to the south which includes the site. I think the Commissioner intended to say distinct rather than district demarcation. He said that the demarcation is recognised in the Development Plan in that the zone to the north of Gilles road is a Community Zone and the zone to the south is a Residential R550 Zone. Gilles Road is the boundary between the two zones.
The Commissioner said that the Metropolitan Adelaide residential provisions of the Development Plan have two main thrusts, namely, compaction or urban consolidation as the first and choice as the second. He said that Objectives 8 and 9 add important but secondary performance matters. He noted that the Objective which deals with compaction, Objective 6, is qualified by the notion that “… recognition must be given to areas of particular character or amenity …”.
The Commissioner said that the proposed development clearly “aligns” with compaction or urban consolidation in that four dwellings are to replace one. I take him to mean that in that sense the proposed development is consistent with the objective of compaction or consolidation. The Commissioner said that with respect to the other main thrust of the Metropolitan Adelaide residential provisions of the Development Plan, namely, choice, Objective 7 is supported by Council Wide Objective 10 which provides as follows:
“A range of housing types to suit the needs and preferences of all sections of the population of the City of Burnside.”
The Commissioner noted that planning experts were rarely of assistance with regard to preferences, although Mr Najar, the project architect, was able to offer some assistance on the topic. The Commissioner did not identify the precise assistance provided by Mr Najar.
The Commissioner also referred to Council Wide Objective 11(b) which provides as follows:
“Residential development which:
(b)increases the density of dwellings in appropriate areas and in a manner which retains the essential and varying elements of the character of the council area.”
The Commissioner referred to Objective 1 for the Residential R550 Zone which provides as follows:
“A zone accommodating residential buildings providing a range of dwelling types, compatible with existing dwellings in terms of scale and streetscape impact.”
In a passage critical to the issues raised on the appeal, the Commissioner said:
“The subject land adjoins a road with ‘collector’ characteristics including a bus route, is near Portrush Road (a busy ‘secondary arterial’ road) which leads to many businesses and community facilities reasonably short distances away and is opposite a zone with relatively intense non residential uses. At a broad spatial level then, it has some ‘appropriateness’. However focussing more on the characteristics of the residential locality, it is far less ‘appropriate’ and falls short on compatibility. The locality is one of large detached dwellings on large lots where the ratio of built form to open space ratio is low. The typical arrangement of properties in residential localities such as this, is of a large well landscaped front yard at least partially visible to passers-by and a large dwelling shielding a large, very private back yard. This arrangement prevails in this locality. It is barely affected by the development at 10 Gilles Road.”
The Commissioner then turned to consider whether, having regard to the provisions for residential zones as a whole, there was any pattern that gave guidance and/or encouragement in relation to the proposed development. He referred to a previous decision of the ERD Court wherein an analysis was made of planning for residential development in inner and middle suburban Adelaide and he noted an observation made in that case to the effect that “… considerable store is place on minimum allotment sizes for precisely defined localities” and as a consequence more closely spaced housing is so directed (Maria de Fazio v City of Burnside (ERDC 319 of 1997)). The Commissioner noted that within the area of the first respondent there are a number of small but precisely defined Residential R350 zones, often surrounded by Residential R450 zones, where closely spaced housing is envisaged.
The Commissioner reached the conclusion that having regard to the characteristics of the locality and the provisions of the Development Plan which he had identified the locality was not “appropriate” (Council Wide Objective 11(b)) nor was the proposed development “compatible” in the locality (Objective 1 for the Residential R550 Zone).
The Commissioner then turned to consider aspects of the proposed development on the site. He described the architecture of the proposed development as “pleasing” and he said the buildings were well-proportioned with facades nicely reflecting key elements of nearby houses. However, he said that the relationship of the buildings to each other, to the proposed open spaces and to other features both on and off the site was problematic. He described the private open spaces as small, narrow and surrounded by high fences or the hedge to which he had previously referred. He said that for much of the year the private open spaces would tend to be heavily shadowed “exercise yards” thus discouraging interaction between them and the family rooms and he said that the side setbacks bounded by walls, high fences and hedges would be gloomy alleyways. The Commissioner said that dwellings one and two will be placed considerably further forward to the front than others in Gilles Road which, given their size and shape, will tend to make them very prominent on the slope of the site and thus out of character with the streetscape generally. He said that the pleasing symmetrical landscape treatment in the front yards could, paradoxically, exaggerate this effect. Finally, he said that in practical terms the driveway is functionally a “street” which takes up a large part of the site and constrains how the balance can be used for interaction between dwellings and their open spaces.
The Commissioner said that having regard to the circumstances of the locality, the site and the relevant provisions of the Development Plan, the appeal should be dismissed and he made an order accordingly.
Issues on the appeal
The first ground of appeal is that the Commissioner erred as a matter of law in placing no weight on the character of land within the locality to the north of Gilles Road. The two planning experts who gave evidence at the hearing before the Commissioner identified a locality in relation to the proposed development, and in each case, the locality included an area of land to the north of Gilles Road and the uses therein included the hospital, residential flat buildings and school buildings.
The locality and the uses in the locality, including the area to the north of Gilles Road and the uses in that area, were relevant to the decision the Commissioner was required to make. However, I do not think the Commissioner ignored the character of the land within the locality to the north of Gilles Road. He refers to that character in the passage of his reasons which I have set out above. He makes the observation that at a broad spatial level the proposed development had some “appropriateness”. I take him to mean by that that taking into account the development in the locality including the development to the north of Gilles Road the character of the locality provided some support for the proposed development.
The Commissioner had earlier referred to a demarcation between the areas to the north and to the south of Gilles Road both in terms of different physical characteristics and different zoning. After referring to the fact that the proposed development had some “appropriateness” at a broad spatial level, the Commissioner then went on to say that he focused more on the characteristics of the residential locality to the south of Gilles Road. He made that statement in the context of considering Council Wide Objective 11(b) and the concept of “appropriateness” and Objective 1 for the Residential R550 Zone and the concept of “compatibility”. I do not think he erred in taking that approach, particularly as Objective 1 for the Residential R550 Zone refers to compatibility with existing dwellings in terms of scale and streetscape impact. In other words, the Commissioner considered the whole locality and found a feature in favour of the proposed development. He then focused on the area to the south of Gilles Road which had existing dwellings when considering the extent to which the proposed development met Objective 1 for the Residential R550 Zone. In my opinion, the Commissioner did not err in taking that approach.
The second ground of appeal (for which leave to appeal on a question of fact has been granted) is that the Commissioner erred as a matter of fact in not finding that the locality of the proposed development included the residential flat buildings to the north of Gilles Road. Those residential flat buildings are between the nursing home and school which the Commissioner referred to and noted as being features of the locality. The Commissioner erred in not referring to the residential flat buildings in his reasons and in not identifying them as a feature of the locality. However, I do not think he overlooked the existence of the residential flat buildings in considering the planning merits of the proposed development. The Commissioner took a view of the site and the residential flat buildings were included in the respective localities of the planning experts. He would have been aware of the existence of the residential flat buildings. Even if he overlooked the residential flat buildings, I do not think the Commissioner’s reasoning and conclusion would have been any different had he taken them into account. The residential flat buildings are part of the locality which lies to the north of the site and support the Commissioner’s conclusion that at a broad spatial level the proposed development has some “appropriateness”. They are not within the residential part of the locality which he identified, namely, the area to the south of Gilles Road and could not affect his conclusions based on that part of the locality. I would also make the point that on my reading of his report the appellant’s planning expert considered that the dominant uses on the northern side of Gilles Road are the hospital and school. He refers to the residential flat buildings but it is the effect of the hospital and school which is emphasised.
The third ground of appeal is that the Commissioner erred as a matter of law in distinguishing between the locality of the proposed development generally and the “residential locality” for the purposes of assessing the compatibility of the proposed development in accordance with the Development Plan. I reject this ground of appeal because the terms of Objective 1 for the Residential R550 Zone are such that the Commissioner was entitled to focus on that part of the locality to the south of Gilles Road.
The fourth ground of appeal is that the Commissioner erred as a matter of law in construing the Development Plan provisions relating to the compatibility of the proposed development to its locality as requiring adherence to the “typical arrangement of properties” in the locality. It seems to me that the critical word here is the word, adherence. The Commissioner did not express himself in a way suggesting that he required adherence to the typical arrangement of properties in the residential locality. Objective 1 for the Residential R550 Zone refers to a dwelling type compatible with existing dwellings in terms of scale and streetscape impact. When the Commissioner referred to the typical arrangement of properties he identified characteristics such as the scale of buildings and the amount of open space, and the visibility of the front yard and dwelling to passers-by, and these are matters of scale and streetscape impact as referred to in Objective 1. It was an important matter that the Commissioner was required to take into account and I think that on the evidence he was entitled to conclude that it was an important matter which spoke against the proposed development.

The fifth ground of appeal is that the Commissioner erred as a matter of fact and law in placing no weight or insufficient weight on the existing development of four semi-detached dwellings within the locality at 10 Gilles Road and the effect of that development on the character of the locality. The Commissioner referred to the development at 10 Gilles Road and said that it barely affected the typical arrangement of properties in the residential locality. This ground of appeal does not raise a question of law. Leave to appeal on a question of fact has not been granted in relation to this ground of appeal. It would be open to me to grant leave to appeal, but I am not prepared to do so. The Commissioner referred to the development at 10 Gilles Road and in essence the appellant’s complaint is about the weight he placed on the development. That is a matter of planning judgment and is not a matter upon which leave should be given.
The sixth ground of appeal is that the Commissioner erred as a matter of law in having no regard to Residential R550 Zone Principle of Development Control Number 3 in construing the requirements of the Development Plan. Principle of Development Control Number 3 provides as follows:
“Any allotment for the development of residential flat buildings or group dwellings should have:
(a)     a site area of no less than 425 square metres for each dwelling; and
(b)     a frontage of no less than:
(i)    18 metres for two group dwellings; and
(ii)     20 metres for three or more group dwellings or a residential flat building.”
This ground of appeal was said to be “the other side of the coin” to the eighth ground of appeal and I will consider it in that context.
The seventh ground of appeal has been struck out.
The eighth ground of appeal is that the Commissioner erred as a matter of law in construing the Development Plan as limiting the location of “more closely spaced housing” to zones other than the Residential R550 Zone. The appellant submitted in relation to this ground of appeal and the sixth ground of appeal that the Commissioner erred in drawing any conclusions from the provisions for residential zones, and in particular, that more closely spaced housing is envisaged in Residential R350 Zones which zones are often surrounded by Residential R450 Zones.
The appellant submitted that in fact no conclusions should be drawn from the provisions relating to Residential R350 Zones. It was pointed out that the proposed development complied with the provisions relating to site area and frontage in Principle of Development Control Number 3. It was also pointed out that the proposed development would not, because the dwellings are to be two-storey, comply with Objective 1(b) for a Residential R350 Zone which provides:
“Objective 1: A zone accommodating residential development:
(b) of a form, scale and style compatible with the existing residential character of the zone created by small single-storey dwellings on small allotments.”
These points are correct. At the same time it is the case that the minimum site area and frontage requirements increase as one moves from a Residential R350 Zone to a Residential R450 Zone to a Residential R550 Zone. In a general sense it might be said that the provisions of the Development Plan relating to a Residential R350 Zone are more compatible with closely spaced housing than the provisions relating to a Residential R550 Zone.
It is not entirely clear to me what point the Commissioner was making in considering the provisions for residential zones. In the end, I think the submission of counsel for the council is correct that the Commissioner had provisionally reached the view that the proposed development was inconsistent with the relevant provisions of the Development Plan and he considered the provisions for residential zones in order to see if there was anything in those provisions which might cause him to alter that provisional view. He concluded that there was not and I do not think he erred in reaching that conclusion.
Conclusion
I reject all grounds of appeal. In my opinion the appeal should be dismissed. I acknowledge that I have not had the benefit of a view of the site and the locality, but on the material before me it is clear that the planning issues in this case were finely balanced. The Commissioner reached a conclusion that was open to him on the evidence and there is no basis upon which this Court should interfere with his conclusion.