Leimal P/L v Adelaide City Council - [2007] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEIMAL P/L v ADELAIDE CITY COUNCIL & ORS
[2007] SASC 29
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White)
6 February 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS
Residential development - nature of development - whether Environment Resources & Development Court correctly applied 'dwelling unit factor' - whether proposed development would have undesirable impacts on neighbouring properties - whether Environment Resources & Development Court erred in refusing provisional development plan consent - appeal dismissed.
Development Regulations 1993 Sch 1, referred to.
Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"dwelling unit factor", "group dwelling", "detached dwelling"

LEIMAL P/L v ADELAIDE CITY COUNCIL & ORS
[2007] SASC 29
Full Court: Doyle CJ, Debelle and White JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons of Debelle J. There is nothing that I wish to add.
DEBELLE J. The appellant applied to the City of Adelaide for provisional development plan consent for a residential development at North Adelaide. The Council refused to grant consent. The appellant appealed to the Environment Resources and Development Court (“the Environment Court”). On 2 June 2006, the Environment Court dismissed the appeal. The appellant appeals to this Court from that decision.
The Subject Land
The site of the proposed development is at 81 Jeffcott Street, North Adelaide. The site comprises two allotments numbered 15 and 16. It is irregularly shaped and is in the form of what is often described as a “hammerhead development”. Allotment 15 adjoins allotment 16 to the north and at the rear of the allotment. Allotment 16 is the larger allotment and is a rectangular shaped parcel of land with a frontage to Jeffcott Street. Allotment 15 is a smaller rectangular shaped parcel adjoining allotment 16 at its western and rear end. It has a frontage to a lane which provides access to and from Ward Street. Allotment 15 has a right of way over the lane.
The land adjoining allotment 16 to the north is owned by a Mr and Mrs Fittock and is a house property. Allotment 15 adjoins the rear of the Fittock land. Mr Fittock made representations opposing the proposed development. There is another house property to the north of the Fittocks. It is owned and occupied by Dr and Mrs Harvey.
At present, two State heritage places are erected on allotment 16. They are the former Christ Church Day School and a building at the rear of the allotment. There is a shed on allotment 15 which is to be demolished.
The Proposed Development
The appellant proposes to retain the Day School building and convert it into two residential flats (“dwellings 1 and 2”). This will involve removal of an extension at the rear of the original building and the building of a new extension.
The heritage listed building at the rear of allotment 16 has a party wall on the southern side of the allotment with a house property owned and occupied by Dr Richards. Dr Richards’ house has a frontage to Strangways Terrace and is on a separate allotment from allotment 16. The heritage listed building will be altered and improved to provide a third dwelling (“dwelling 3”). That dwelling will be a two storey building.
A fourth dwelling (“dwelling 4”) is to be constructed on allotment 15. It will be part of a two storey building. On the first floor level a three bedroom dwelling will be constructed. At the ground floor, the building will comprise three double garages to which access will be gained by the lane. Those garages are intended to serve the dwellings 1 and 2 in the Day School building and dwelling 4 which will be constructed immediately over them. This building will be one metre from the boundary of allotment 15 with Mr Fittock’s property.
The Development Plan
The land is within the area of the City of Adelaide. It is within the R5 Carclew Precinct (“the Carclew Precinct”). The Council’s Development Plan has but one objective for the Carclew Precinct. It is “development which supports the attainment of the Desired Future Character for the Carclew Precinct”. The first sentence of the Desired Future Character of the Carclew Precinct as expressed in the Development Plan reads:
“The Carclew Precinct will be conserved as one of the most attractive and historically significant residential areas in the City of Adelaide.”
The Environment Court found that the proposed development is broadly in accord with the Desired Future Character of the Precinct.
The Environment Court found that a number of provisions of the Council’s Development Plan were relevant to an assessment of the proposed development and to the question whether the proposed development was consistent with Desired Future Character of the Carclew Precinct. I list the issues and the Environment Court’s assessment of them.
Pedestrian and Vehicular Traffic
The Environment Court examined the adequacy of the walkway providing pedestrian access for visitors who sought to gain access to the development from Jeffcott Street. It held that, although it was not ideal, the walkway was adequate for its purpose.
The Court also examined whether the garages under dwelling 4 were each of sufficient size for two vehicles and held that they were and that the number of car parking spaces provided was adequate. It also considered the sight distance for drivers driving from the garages into the lane and the narrow entrance from the lane to the garages. It held that, although it was not ideal, the arrangements for access and egress from the garage to the lane were adequate.
The Court held that the traffic arrangements from the lane to Ward Street were consistent with the principles in the Council’s Development Plan relating to traffic access and safety and car parking.
Streetscape
Principle 3 for the Carclew Precinct provides:
Development should conserve the predominantly nineteenth and early twentieth century townscapes of the Precinct. These townscapes comprise large mansions in landscaped grounds, single storey detached and row cottages, villas, large terrace houses and institutional buildings, some of heritage significance.
It was contended that, while the streetscape for Jeffcott Street would be preserved, the two-storey extension to the Day School and the two storey development on allotment 15 would conflict with single storey development in the lane. The Environment Court did not accept that contention. It held that the development in the lane was a mixture of single and two storey buildings so that the two proposed dwellings, each of two storeys, would not be out of character with the existing development in the lane. It held that the streetscape in Jeffcott Street would be improved by the restoration of the former Day School. Although one of the two storey buildings could also be seen from Strangways Terrace, the Court held that the impact of the proposed development on the streetscape of Strangways Terrace was acceptable.
Landscaping
The planning experts who gave evidence differed in their calculation of the proposed area of landscaped open space. The Court held that nearly thirty per cent of the site would be constituted by landscaped open space. It held that the proposed development contains sufficient landscaped open space.
The Court then examined the adequacy of private landscaped open space. It held that the private landscaped open space for dwellings 1 and 2 exceeded the minimum and that there was a reasonable allocation of such space for dwelling 3. However, in the case of dwelling 4, there was a shortfall of such space which weighed against the development.
Heritage
The Court accepted the evidence of Mr Harry, the only heritage architect called, that the proposal was an appropriate development of a heritage place.
Height, Bulk and Density
A number of provisions in the Council’s Development Plan deal with the form of the proposal as built. It is unnecessary to refer to all of them. The Court noted that the proposal complied with the required plot ratios. The Court held that from a townscape point of view, the height of the new buildings was acceptable.
The Environment Court then considered the Council Wide Principle 18 which is a means to limit the number of dwellings on a site. The control is exercised by what is called “the dwelling unit factor”. This is a control which is unique among Development Plans in this State. Each precinct has a table by reference to which the dwelling unit factor may be calculated. If the dwelling unit factor exceeds the area of the site, it is open to a planning authority to conclude that it should refuse development consent. The Environment Court held that the dwelling unit factor for this proposal was 1500 square metres. As the area of the site was 1293 square metres, the proposal contravened Principle 18. The Court held this contravention weighed against the proposed development. In reaching that conclusion, the Court treated dwellings 3 and 4 as a group dwelling. The Environment Court’s conclusion that dwellings 3 and 4 constituted a group dwelling and its conclusions in relation to Principle 18 are one of the issues the subject of this appeal.
The Court also noted that the height of dwellings 3 and 4, both of which are two storey buildings, gave rise to issues concerning amenity and privacy.
Amenity and Privacy
Two provisions in the Council’s Development Plan which apply throughout the Council area concern privacy and amenity. Objective 28 provides:
Protect privacy, access to sunlight and the amenity of neighbouring residential premises.
Principle of Development Control 2 provides:
P2 EXISTING USES – CHANGE OF USE
A lawful existing use of land or a building may be permitted to change to a use considered to be more in conformity with the desired future character and Principles for the relevant Precinct, provided such a change of use is neither detrimental to the amenity of its locality nor to the overall attainment of the desired future character of the relevant Precinct.
The Court found that the height of dwelling 3 will affect the property owned by Dr Richards on Strangways Terrace. It found that the erection of privacy screens prevented overlooking of the property of Dr Richards but that the appearance of the upper storey of dwelling 3 from the property of Dr Richards would reduce the amenity of that property in contravention of Objective 28.
The Court also held that dwelling 4 would have a direct impact on the house properties of Mr Fittock and of Dr and Mrs Harvey who both reside to the north of the proposed development. The Court held that, while the erection of privacy screens on the northern balcony of dwelling 4 will prevent overlooking into each property, the eastern wall of the dwelling would have a very serious impact upon the amenity of Mr Fittock. For that reason the proposal again contravened Objective 28. The Court also found the northern wall of dwelling 4 would diminish the amenity of the Harveys’ to a lesser extent.
Overshadowing
The Court found that, although the proposal would cause some overshadowing of adjoining properties, the level of overshadowing was not unacceptable.
The Environment Court’s Conclusion
The Court expressed its conclusion in these terms:
70The planning assessment of this proposal is a complex exercise involving the weighing of a number of factors. The proposed residential land use and the treatment of the heritage listed Day School building weigh in the proposal’s favour. The traffic impacts external to the site are unobjectionable. The internal traffic arrangements, though tight, are acceptable. The streetscape impact of the proposal is acceptable. There is sufficient landscaped open space overall, but insufficient private landscaped open space for dwelling 4. Application of the dwelling unit factor applied by the Development Plan in accordance with Principle 18 indicates that the proposed development may be too dense.
71The factor which tips the balance against the proposal is the impact of dwelling 3 on the amenity of Dr Richards’ property and, more seriously, the impact of dwelling 4 on the Harveys’ property and on Mr Fittock’s property. The placement of a 7.1 metre high wall 1 metre from Mr Fittock’s rear boundary is simply unacceptable. The Council’s decision is upheld.
Plainly, the Environment Court has carefully weighed the factors which militated against the proposal where it impacts on the amenity of three neighbours.
The Grounds of Appeal
The appellant challenged the Environment Court’s conclusion on two main grounds. The first was the Court’s conclusion that an application of the dwelling unit factor indicates that the proposed development may be too dense. Mr Roder, who appeared for the appellant, submitted that the Court had erred in its interpretation and application of Principle 10 of the Principles of Development Control for the Carclew Precinct, and of Principle 18 of the Council Wide Principles of Development Control. The second was that the Environment Court had erred by misconstruing and misapplying Objective 28 in finding that the proposed development would have undesirable impacts on neighbouring properties.
Principle 18
Principle 18 is concerned with the density of residential development on a site. By means of the dwelling unit factor, it fixes the maximum number of dwellings on a site. It provides:
P18MAXIMUM DWELLING DENSITY
The number of dwellings which will be permitted on a site should not exceed the site area divided by the dwelling unit factor as set out in the provisions for the relevant Precinct, and any fractions of the number so calculated should be disregarded. Development comprising the erection of a single dwelling on an existing allotment, should have regard to the dwelling unit factor that applied at the time the allotment was created.
As is apparent, the dwelling unit factor varies according to the precinct in which the proposed development is to be located. For the Carclew Precinct, the dwelling unit factor is prescribed by Carclew Precinct Principle 10 which reads:
Dwelling unit factor:
500 square metres (detached dwellings, group dwellings, residential flat buildings not contained in an existing building)
400 square metres (semi-detached dwellings, row dwellings)
250 square metres (residential flat buildings contained within an existing building)
The dwelling unit factor varies according to the different types of dwellings as they are defined in Schedule 1 of the Development Regulations 1993.
The Environment Court found that the site had an approximate area of 1293 square metres. The Court held that dwellings 1 and 2 were residential flat buildings contained within an existing building and so qualified for a dwelling unit factor of 250 square metres each. There is no appeal against that finding. The Court then held that dwellings 3 and 4 were separate buildings and so fell within the meaning of “group dwelling” as that expression is defined in Schedule 1. Thus, each had a dwelling unit factor of 500 square metres. The total dwelling unit factor for the whole development was, therefore, 1500 square metres which exceeded the site area of 1293 square metres and so contravened Principle 18.
The contention that the Environment Court had erred in holding that Principle 18 had been contravened is grounded on the Court’s conclusion that dwellings 3 and 4 were group dwellings. Mr Roder submitted that dwellings 3 and 4 did not fall within the definition of group dwellings in Schedule 1 of the Development Regulations and should be considered as dwellings which did not fall within the meaning of any other kind of dwelling as defined in the Regulations.
Schedule 1 of the Development Regulations defines terms used in the Development Regulations and in Development Plans. It defines a number of different kinds of dwelling. A dwelling is defined as “a building or part of a building used as a self-contained residence”. Each of the four dwellings is plainly a dwelling as defined. Schedule 1 also defines the expressions “detached dwelling”, “group dwelling”, “multiple dwelling”, “residential flat building”, “row dwelling”, and “semi-detached dwelling”. Dwellings 1 and 2 are residential flat buildings as defined and that is common ground. Dwellings 3 and 4 are neither a multiple dwelling, row dwelling, nor a semi-detached building and that too is common ground. That leaves two expressions, detached dwelling and group dwelling. The expression “detached dwelling” is defined to mean:
‘detached dwelling’ means a detached building comprising one dwelling on 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 development authorisation;
Neither dwelling 3 nor dwelling 4 is a detached dwelling as neither is a dwelling on a site held exclusively with the dwelling.
The expression “group dwelling” is defined in these terms:
‘group dwelling’ means one of a group of two or more detached buildings, each of which is used as a dwelling and one or more of which has a site without a frontage to a public road or to a road proposed in a plan of land division that is the subject of a current development authorisation;
The Environment Court found that dwellings 3 and 4 are each detached buildings and that, as dwelling 4 had a frontage to a public road, the two dwellings constituted a group dwelling. Mr Roder points to the fact that dwelling 3 is constructed in such a way that it has a common wall, this is to say, a party wall with the dwelling constructed on Dr Richards’ property. He submitted that dwelling 3 is not, therefore, part of a group dwelling because it is attached to another dwelling.
On one interpretation of the definition of “group dwelling”, it is necessary to consider the dwellings on the site which is the subject of the development application. Thus, the fact that one or more of the dwellings on this site is constructed so that it adjoins a building on an adjacent allotment would not be a reason for concluding that it is not a detached dwelling. However, it is not necessary to decide that issue because even if dwellings 3 and 4 are not part of a group dwelling, it was open to the Environment Court to apply the dwelling unit factor for a group dwelling. If they are not group dwellings, dwellings 3 and 4 do not fall within the meaning of any other kind of dwelling defined in the Development Regulations of the site. It is necessary to apply the definitions in a practical and common sense manner. Dwellings 3 and 4 are very similar in character to group dwellings. It was, therefore, appropriate for the Court to adopt a dwelling unit factor which applied to the form of dwelling which most approximated dwellings 3 and 4, which in this case was clearly a group dwelling. For these reasons the Environment Court did not err in applying Principle 18.
Effect Upon Amenity
Mr Roder then contended that the Environment Court had erred in the manner in which it balanced the factors affecting amenity. He submitted the Environment Court had failed to make any finding on the question of the effect of the proposal on the character and amenity of the locality as a whole, an issue he described as “the more central issue”. Too much emphasis, he said, had been given to the amenity of neighbouring premises.
This contention misconceives the reasons of the Environment Court. When read as a whole, it is apparent that the Court has had regard to the character and amenity of the locality on at least two occasions. As is noted above, the Court first considered the sole objective for this Precinct, which is to support “the attainment of the desired future character” of the Carclew Precinct. The Council’s Development Plan spells out the desired future character of the Precinct. It is sufficient to refer to the first three paragraphs:
The Carclew Precinct will be conserved as one of the most attractive and historically significant residential areas in the City of Adelaide.
Development will be required to provide very high standards of design and landscaping consistent with the quality of existing heritage buildings, and to complement the Precinct’s significant and cohesive townscapes. The public landscaped open space of Palmer Gardens and the Park Lands below Montefiore Hill further complements the character and amenity of the Precinct.
On Jeffcott Street and Ward Street, west of Jeffcott Street, the greater sense of enclosure provide by the closer pattern of development and the lines of mature street trees will be maintained to provide a more intensive urban character.
The Court’s conclusion that “the proposed development is broadly in accordance with the desired future character” of the Precinct required it to consider the character and amenity of the locality as well as the terms in which the Plan expressed the desired future character of the Precinct.

The Court next considered the character and amenity of the locality when examining the streetscape. Principle 3 of the Carclew Precinct has already been quoted. It refers to the townscape of the Precinct. The Court expressly rejected evidence that the two storey aspects of dwelling 4 would conflict with the scale of buildings in the lane that serves the rear of allotment 15. It concluded that dwelling 4 would not “be out of character with development in the laneway”. While the laneway represents but one part of the character and amenity of the locality, it is an important aspect of it. Shortly thereafter, the Court held that the streetscape in Jeffcott Street would be improved by restoration of the Day School and the fact that glimpses of the two storey buildings comprising dwellings 3 and 4 could be had from Jeffcott Street was unobjectionable. The Court also noted that dwelling 3 could be seen from Strangways Terrace and held that the impact of the development on the streetscape of Strangways Terrace was acceptable. The Court found that the locality of the proposed development was a relatively small circle with the subject land at its centre and with a property fronting Ward Street, its western most point in a group of properties west of the lane, its southern most point approximately five properties to the south of the land and fronting Jeffcott Street, and its eastern most point behind the property at allotment 16 on Jeffcott Street. The locality included properties adjoining the bend in Strangways Terrace to the rear of the development site. The Court’s conclusion on the townscape and streetscape issues meant that it had regard to the character and amenity of that locality.
The Court also held that the proposal complied with Principles 8(b) and 8(c) for the Carclew Precinct. These Principles respectively refer to the townscape of Strangways Terrace and Jeffcott Street. The character of the townscape of Strangways Terrace and Jeffcott Street is tantamount to the character and amenity of the locality. When consideration is given to all of the occasions on which the Environment Court considered amenity in the manner just outlined, it is clear that the Court has had regard, in fact quite detailed regard, to the character and amenity of the locality.
Apart from these considerations, the Council’s Development Plan in a number of places directs particular attention to issues which concern the amenity of residential premises which are in the neighbourhood of a development. Objective 28 is but one example. It provides:
Object 28: Protect privacy, access to sunlight and the amenity of neighbouring residential premises.
That objective is supplemented by Council Wide Principles 26, 27 and 44. Principle 26 is concerned with the microclimatic effect of a proposed development on neighbouring residential property. Principle 27 protects access to sunlight of neighbouring residential property. Principle 44 requires a development proposal to be designed and cited to minimise intrusion on the privacy of adjacent residential premises. The Court was, therefore, required to examine the effect of the proposal upon neighbouring residential properties. Indeed, had it not done so, it would not have properly discharged its function.
Mr Roder submitted that the Court had failed to balance the question of the impact of the proposal upon neighbouring residential properties with the character and amenity of the locality. A consideration of the whole of the Court’s reasons shows that it has. More particularly, an examination of paragraph 70 of its reasons, which has already been quoted, shows that the Court has weighed a number of factors including the streetscape with the impact of the proposal upon neighbouring properties.
The relative weight to be given to the amenity of the locality and to the amenity of neighbouring premises is not a constant. It will vary according to the facts and circumstances of each proposed development and the nature and character of the amenity affected in each case. Even if the proposal was, generally speaking, consistent with the character and amenity of the locality, it does not necessarily follow that development consent should issue notwithstanding its affect upon the amenity of neighbouring premises. It is not difficult to envisage a proposal which is consistent with the character and amenity of a locality but, nevertheless, has such a detrimental effect upon neighbouring premises that it must not be approved. Objective 28 in the Council’s Development Plan is clearly intended to protect privacy and the amenity of neighbouring residential premises. Thus the Environment Court correctly had regard to the amenity of neighbouring premises. The appellant therefore fails on this ground.
Thus, a careful examination of the reasons of the Environment Court demonstrates that it had close and careful regard to the factors which affected the character and amenity of the locality as well as those which impacted on neighbouring properties and carefully balanced them. There is, therefore, no justifiable reason for interfering with its conclusion that the proposal had an undesirable impact on neighbouring properties.
The appellant has failed to establish that the Court erred as a matter of law. The central issue before the Environment Court was whether the density of the development and the affect upon the amenity of neighbouring premises was of such a kind that the Council’s decision should be upheld. The Court held that it was. That is a decision of this specialist planning court on a quintessential planning issue. As this Court said in Ampol Road Pantry Pty Ltd v City of Brighton (1993) 62 SASR 165 at 173, this Court will interfere with a conclusion on essentially planning issues in exceptional cases only. This is not such a case.
For these reasons the appeal will be dismissed.
WHITE J. I would dismiss the appeal. I agree with the reasons of Debelle J.