Papaemanouil v City of Unley & Anor No. Scciv-02-1716

PAPAEMANOUIL v CITY OF UNLEY & ANOR
[2003] SASC 163
Land and Valuation Division

DEBELLE J This is an appeal from a decision of a Commissioner of the Environment Resources and Development Court in which the Commissioner upheld the decision of the respondent, City of Unley, refusing to grant provisional development plan consent.
The appellant seeks to construct five dwellings in the form of a residential flat building on an allotment of land at Everard Park. The land is within the area of the City of Unley (“the Council”). In March 2002 the appellant applied to the Council for a grant of provisional development plan consent for the proposed development. On 18 June 2002 the Council refused the application. The appellant appealed to the Environment Court. The appeal was heard by a Commissioner who, on 7 November 2002, dismissed the appeal. The appellant appeals to this Court.
The Proposal
The proposed development is on land at the corner of Berkley Avenue and Hillsley Avenue, Everard Park. At present, the only improvements on the land are a single-storey dwelling some 40 years old and a garage. The development will comprise five dwellings, two of which are three-storeys in height (the third storey being within the roof space), and the other three of which are two-storeys in height. The dwellings adjoin one another and have exclusive street frontages. Each dwelling will have a site allocated for its use. The proposed development adjoins a dwelling in Hillsley Avenue. In Berkley Avenue, it is adjacent to a development comprising four row dwellings. A diagrammatic plan of the proposed development follows:
** REFER ORIGINAL JUDGMENT FOR DIAGRAMMATIC PLAN **
It is difficult to classify the true nature of the development. It has the characteristics both of a residential flat building and a building containing row dwellings. I prefer to think of it as a row dwelling. Nothing turns on the precise category of the development.
The Locality
The locality is entirely residential in character except for a child care centre and several consulting rooms which have a frontage to Anzac Highway. As the Commissioner found, the character of the locality is influenced by a small council reserve immediately opposite the subject land and by Anzac Highway that forms a major transportation corridor only 50 metres north-east of the subject land. The subject land is in fact only one allotment removed from Anzac Highway. On the opposite side of Berkley Avenue and Hillsley Avenue dwellings have been constructed. The wider locality is generally characterised by single-storey dwellings. There is no dispute as to the bounds or the character of the locality.
The Development Plan
The subject land is situated in a Residential C150 Zone prescribed by the Council’s Development Plan. The proposed development is neither a complying nor a non-complying development.
As the Commissioner noted, the Development Plan contains a most complex array of interrelated planning provisions. Having considered all of the evidence and the submissions, the Commissioner concluded that the planning issues and the provisions of the Development Plan which were of most relevance could be distilled into the following question.
“Will the development by reason of its density, bulk, scale, design, appearance and siting bring the proposal into conflict with the desired character of the zone, Objectives 1, 2, and 3 and Principles 1, 2(a), (b) and (d), 3, 5 and 6 for the zone, General objective 5 and Principles 12 and 52, Land Use Objectives 26 and 27 and Principles/Performance Criteria 63, 73, 74, 75, 76, 77, 78(b)(iv), 79, 80, 84 and 94?”
The appellant did not dispute the formulation of the question.
The Development Plan prescribes the desired character of the zone in these terms:
“Desired Character
The area was generally developed in the period between 1903 and 1937. This Zone is intended to contain development of a medium-high density nature up to three-storeys, close to public transport and close to the City.
Housing Types
Medium-higher density development in the Zone should occur mainly through site amalgamation rather than on individual allotments to afford larger, more functional development sites. Development should respond particularly to the issues of access from Anzac Highway and South Road, protection of amenity enjoyed by adjoining existing dwellings, car parking, noise attenuation design and the creation of attractive new residential environments.
Allotments are generally 600 square metres or more in area and as such offer potential for substantial intensification of dwelling development.
Landscape and Built Form
Built form will be the predominant element in the locality and should be located and shaped to minimise impact on adjoining dwellings.”
The Objectives and Principles of Development Control for the zone are expressed in these terms:
“RESIDENTIAL C150 ZONE
OBJECTIVES
Objective 1:       A zone primarily accommodating residential buildings up to three storeys high.
Objective 2:       Provision for compact forms of dwellings to take advantage of the ready accessibility of the land to transport facilities in the zone.
Objective 3:       Residential development which establishes a character typified by high quality landscaping and building design and in a manner which minimises adverse impact upon the amenity of adjacent residential areas and zones.
PRINCIPLES OF DEVELOPMENT CONTROL
1Development should be for single, two and three-storey residential buildings.
2Medium density development should occur on amalgamated sites to:
(a)      facilitate appropriate site planning and building layout;
(b)      facilitate safe vehicular access, egress and parking;
…
(d)complement the existing configuration, scale and form of dwellings in Hillsley Avenue by their retention or through compatible new development, and incorporate the newer higher density development in rear yards and in properties fronting Anzac Highway.
3Dwellings should have a site area of not less than 150 square metres (averaged for three or more dwellings sharing a common access). …
5Development should protect the amenity of existing housing including that in adjacent residential zones.
6Development should provide for attractive and complementary front garden landscaping and screening to adjoining development.”
It is also relevant to have regard to Principles of Development Control which are expressed in the principles which operate throughout the Council area. Of particular relevance are Principles 12 and 63.
“12   All development should relate in terms of its setting, height, scale and bulk to that appropriate for development in the subject zone and should also be complementary with existing surrounding development in the locality, in particular adjoining residential development.
…
63The appearance of buildings and land should not detract from the desired future character of the locality having particular regard to:
(a)    building mass and proportion;
(b)    the manner in which buildings address public streets;
(c)    external materials, patterns, textures and decorative elements;
(d)    ground floor height above natural ground level;
(e)    roof form and pitch;
(f)    façade articulation and detailing including window and door proportions;
(g)    verandahs, eaves and parapets;
(h)    landscape character;
(i)     driveway crossovers, fence style and alignment; and
(j)     height of external walls (refer Figure 1).”
In his reasons, the Commissioner referred to other provisions but it is not necessary to set them out for the purpose of the appeal. I have, nevertheless, had regard to them.
It is apparent from the Development Plan and, in particular, the statement of the desired character, that it is intended that the area should undergo redevelopment to a form of medium to high density residential development. It is intended that the redevelopment should be effected by the amalgamation of allotments rather than by development on individual allotments: see both the statement of the desired character of the zone and Principle 2. In this way, it is intended that more functional development will be constructed. This desired character is reflected in both the objectives and principles of development control for the zone. While the Development Plan allows for redevelopment of the zone, it is, nevertheless, intended that the new development should complement the existing configuration, scale and form of dwellings in Hillsley Avenue: see Principle 2 of the principles of development control for the zone and Principle 12 of the principles which apply throughout the Council area. In other words, while the Development Plan recognises the need for medium density development, it must be compatible with and preserve the amenity and character of the immediate locality and, in particular, adjacent dwellings. The intention to redevelop the area does not sit easily with the desire to preserve the existing character and amenity of the zone. It is the tension between these goals which, in part, gives rise to the issues in this appeal.
The Decision
The Commissioner recognised the competing objectives of the Development Plan and had particular regard to them. He said:
“³⁸Thus, there is a tension between the nature and impact of the proposal which seeks to intensify the development in accordance with Zone Objectives 1 and 2 and the established character of the locality and the amenity expectations of a neighbour. The presence and purpose of the adjoining zone and its established character and the fact that the proposed development is the first of its kind in the locality makes this tension all the more palpable.
³⁹In these circumstances, particular attention should be paid to the purpose and intent of the Residential C150 Zone and the examination of the benefits and detriments of all relevant aspects of the proposal by applying the principles of planning properly and reasonably.
⁴⁰The intent of the Residential C150 Zone is to be obtained by an examination of its objectives and principles and the statement of its desired character. Objectives 1 and 2 and Principle 3 quite clearly point to a goal of creating a residential area that has a significantly higher density than that which exists today – notwithstanding the presence of two or three parcels of land in the locality which have been developed in the 1970’s style of single storey residential flat buildings. Such a future is also spoken of in the desired character statement. In this statement mention is also made of the potential for substantial intensification of existing allotments with developments of medium to high density and up to three storeys in height.”
The Commissioner noted the evidence of the planner, Mr Dwyer, the planner called by the appellant. He continued:
“⁴³Were it not for the provisions of the Objective 3, Principles 2 and 5 and the statement of the desired character of the zone, Mr Dwyer’s views in this respect might be given more weight. Those provisions, in no less than four separate references, speak of development of a nature and design that minimises impact on adjoining development and the amenity of the immediate and wider locality. Carefully considered I think the Plan speaks with some force in this respect. Thus, development which subordinates those provisions which seek compatibility between existing and new development in favour of those provisions directed to maximise density measure (150 square metres per site) or height (three storeys) wrongly applies the relevant provisions. Such an approach might also subordinate proper consideration of the purpose and intent of the Residential B350 Zone.
⁴⁴Thus, it does not follow that development that has proper regard to its neighbours necessarily works against the desired character for the Residential C150 Zone. The provisions for the zone expressly advocates residential development which has particular density, height and design characteristics and, in addition, development which offers protection to adjacent housing. No one objective has primacy over the other.
⁴⁵Having examined the locality in some detail I am left in no doubt that in the early phases of the redevelopment of the zone most new development which, prima facae, (sic) meet the zone objectives will appear and function materially different from the development which now typify the area. However, the provisions of the Plan and the existing circumstances strongly point toward a planning approach which has, as its objective, development of a design, scale and siting which acts in each case to be an appropriate transition between one form of development to another. In this sense I agree with Ms Blencowe’s submission that new development generally of the nature proposed must be well managed. To some extent the first development of its kind, once constructed, will become an element in the landscape against which future development will be tested. Thus, it is sound planning practice to ensure that the foundations for the future development of the zone are carefully laid particularly in circumstances where the locality is predominantly characterised by development on allotments that are of a size that was regarded, in the very recent past, as being suitable only for a single dwelling. In these circumstances and, in particular, the established nature and pattern of land holdings, the presence of those provisions that advocate medium density residential development occurring on amalgamated sites should come as no surprise.”
After considering the effect of the proposal upon neighbours and on the general streetscape, he concluded:
“⁵⁰Sitting alone, the proposed building has particular and attractive design attributes which could not be ignored. In one way the designer is to be complimented for the approach taken because it is a far cry from the building forms that are based on designs which have been influenced by early European architecture that are often before this Court. However, by virtue of the zone provisions its design, bulk, scale and siting cannot be divorced from its circumstances. It has had insufficient regard to its neighbours and streetscape and stands in conflict with several provisions of the Plan which go to the heart of that part of the desired character of the zone that is expressed in Objective 3, Principles 2(d) and 5 and which are succinctly summarised in General Principle 12. I thus find the decision of the Council to be correct.”
The Commissioner dismissed the appeal noting as he did so that he had not overlooked that the appellant was willing to alter the design to accommodate changes which might enable development consent to be granted to the development.
The Grounds of Appeal
The first ground of appeal is that the Commissioner erred in law in that he failed properly to distil the intent of the Development Plan as it applies to the subject land. The importance of distilling the overall intent and purpose and the desired character of the zone in which it is sought to place a proposed development was emphasised in City of Mitcham v Freckmann (1999) 74 SASR 56 at [18]. The appellant contends that, had the Commissioner properly distilled the intent and purpose of the zone, he would have recognised that the proposed development accorded with it and would have granted development consent.
This contention is central to the submissions of the appellant. The appellant’s case is that the Commissioner should have given greater weight to those provisions which spell out the goal of medium to high density development. The Commissioner’s failure to do so, the argument continues, has led him into error in that
(1) he has given too much weight to the existing amenity of the area;
(2)he has wrongly placed an onus on the appellant to demonstrate that the development has special merit; and
(3)he has failed to have sufficient regard to the limited size of the zone which is only two allotments deep.
An examination of the Commissioner’s reasons shows that he has carefully understood the intent and purpose of this zone.
I have already referred to the competing objectives for this zone. The Commissioner’s reasons show that he was alert to them. In para 40, he mentions the goal of creating a residential zone with a significantly higher density than currently exists. The appellant’s planner, Mr Dwyer, had relied on that goal. But the Commissioner was also alert to the other objectives which he identifies in para 43 of his reasons. He correctly summarises those provisions as requiring that the development should minimise impact on adjoining development and the amenity of the immediate and wider locality. The Commissioner continues by stating that these provisions seek “compatibility between existing and new development”: para 43. For the reasons expressed above, that conclusion is correct. He then summarises the effect of the Development Plan in para 44. In effect, he has said that the provisions which seek compatibility between existing and new development are not to be subordinated to those which speak of increasing the density of development. That, I think, is the correct approach. The Development Plan imposes upon the Council, as the relevant planning authority, the difficult task of determining how to maintain a balance between the competing provisions when considering a particular development proposal.
In my view, it is apparent from the reasons given by the Commissioner that he has correctly discharged the task of distilling from the Development Plan its overall intent and purpose and the desired character of the zone. Having done so, he has then concluded that this particular development, by reason of its design, bulk, scale and siting, is not compatible with neighbouring development and the streetscape, and those objectives and principles which seek to ensure compatibility between new development and the existing character and amenity of the locality. The question whether the particular development should be permitted is very much a planning judgment with which this Court should not interfere. In short, the Commissioner has properly distilled the intent of the Development Plan and this ground of appeal fails.
In support of his contention, Mr Manos relied on the decision of the Environment Resources and Development Court in Gray v City of Holdfast Bay [2001] SAERDC 15. That decision turns on the facts and the different provisions of the Development Plan for the City of Holdfast Bay. It does not assist in the determination of the issues in this case. In any event, I have some reservations about the approach of the court in that case.
The next ground of appeal is that the Commissioner erred as a matter of law in his interpretation of the relevant provisions of the Development Plan and failed to take into account all relevant provisions of the Development Plan. There is no substance in this ground. An examination of the Commissioner’s reasons shows that he has had regard to all relevant provisions. He was assisted in that task by the two planners who were called, one on behalf of the appellant and the other on behalf of the Council. In his reasons, the Commissioner noted the number of objectives and principles of development control which had been identified by the respective planners. He has also quoted a number of provisions as well as referring to others to which he had had regard. Mr Manos, who appeared for the appellant, did not identify any provision to which regard had not been had. This ground of appeal must fail.
Mr Manos, who appeared for the appellant, submitted that the Commissioner had erred in concluding that no one objective of the zone has primacy over another. He submitted that the Development Plan requires that greater weight be given to those provisions which spell out the goal of medium to high density development. There is nothing which justifies that approach either generally in the Development Plan or in the particular provisions for this zone. There is nothing which states, either expressly or by implication, that one set of objectives or principles is to prevail over others in this zone. All have to be considered when assessing the proposed development. Furthermore, there are so many provisions which speak of the objective of compatibility between medium to high density development and the existing amenity that it is not possible to conclude that the objective of medium to high density should prevail. Principle 12 of the principles of development control which apply throughout the Council expresses the goal that new development should be complementary to existing development and that principle of general application is reinforced for this particular zone by Objectives 3 and Principles 2(d) and 5. In other words, the general objective for the whole area of the Council is given a particular application in the zone.

For these reasons, the Commissioner has correctly understood the intent and purpose of the zone.
Other grounds of appeal hinge on the submission that greater weight should be attributed to the provisions of the Development Plan which spell out the objective of medium to high density development. Given the above conclusion, it is unnecessary to refer to them all. However, I deal with the submission that the Commissioner gave too much weight to the perceived negative effects of the proposed development upon the immediate and wider locality. The appellant contends that the Commissioner erred as a matter of law in placing too much weight on the current conditions existing in the locality. When his reasons are read as a whole, it is apparent that the Commissioner has carefully noted the benefits as well as the detriments of the proposed development. There is nothing in his reasons which indicates that he has given undue weight to the question of compatibility with the existing development and the existing amenity. In essence, the submissions of Mr Manos on this question constitute an appeal against the Commissioner’s exercise of planning judgment. This Court has repeatedly said that it will not re-examine issues involving the exercise of a planning judgment except where there has been an identifiable and egregious blunder, a demonstrable error of fact or principle, or the circumstances are in some other respect quite exceptional: Ampol Road Pantry Pty Ltd v Corporation of the City of Brighton (1993) 62 SASR 165, 173. No error of that kind has been demonstrated. There is no justification, therefore, for interfering with the Commissioner’s exercise of his planning judgment.
Mr Manos submitted that, in para 45 of his reasons, the Commissioner had wrongly imposed an onus on the appellant. In that paragraph, the Commissioner correctly allowed for the fact that the first development, consistent with Objectives 1 and 2 for the zone, will be different from existing development. The Commissioner then goes on to state that the provisions of the Plan point to a planning approach which has as its objective development of a design, scale and siting which acts as an appropriate transition from one form of development to another. A new development of this kind, he says, must be well-managed, adding words to the effect that the first development of this kind will be a benchmark for future developments.
I do not think that the Commissioner was entirely correct in requiring that the first development act as a kind of transition from one kind of development to another, particularly as this zone is only two allotments deep. However, if regard is had to the rest of the reasoning in this paragraph, it is apparent that the Commissioner is seeking to do no more than ensure that the first development be of a kind appropriate to the zone. That is made especially clear by the Commissioner’s reference in the last sentence of para 45 to the express objective that medium density development should be established on amalgamated sites. That objective is stated in unambiguous terms in the statement of the desired character of the zone and in Principle 2. It is implicit in those provisions which require a quality landscape, a setback and development which complements the existing amenity. In short, the Commissioner has not created an onus but is voicing the intent of the Development Plan for this zone. I do not agree that the Commissioner has, either in this part of his reasons or elsewhere, required the appellant to discharge any onus which is not required by the Development Plan.
In this context, it is convenient to refer to the evidence of Mr Dwyer, the planner called on behalf of the appellant, who said:
“… the proposal deserves reasonable priority against the prevailing built form as it represents the direction and goals of the development plan. Put another way, the development plan provisions will never be achieved if development of the type proposed cannot be established on the lands.”
Mr Manos relied on this observation which, he said, encapsulated the issues in this appeal. The opinion is expressed too absolutely and fails to have regard to an important aspect of the provisions for this zone, namely, the expressed intent that medium to high density development should occur on amalgamated allotments. This kind of development can occur in this zone if allotments are amalgamated. The opinion also fails to have regard to the fact that the proposed development might represent an over-development of the site. In effect, that is the conclusion which the Commissioner reaches in para 50 of his reasons.
Mr Manos emphasised that the zone was only two allotments deep and submitted that it was not possible to develop land without some adverse effect on the locality. This argument too fails to have due regard to the objective that allotments be amalgamated.
Mr Manos submitted that the Commissioner had erred in having regard to the amenity of the immediate locality as well as to the wider locality. However, he does not identify why the Commissioner has erred in this respect. His argument is undermined by the fact that the two planning witnesses called agreed on the bounds of the relevant locality and both had regard to a wider locality than the immediate neighbourhood. It was a locality wider than the bounds of this small zone. It was appropriate to have regard to the houses directly opposite in the Residential B350 Zone. The Commissioner’s reference to the “wider locality” might not have been an entirely happy summary of the objectives and principles of development control which he summarised in para 43. They require that the development minimise “adverse impact upon the adjacent residential areas and zones”. In my view, that is all the Commissioner meant by referring to the “wider locality”. I do not think that the Commissioner erred in this respect.
When stripped to essentials, most of the remaining grounds of appeal seek to question the exercise by the Commissioner of his planning judgment. As already mentioned, this Court will not interfere with an exercise of planning judgment except in very limited circumstances. None of those circumstances exist in this appeal. There are aspects of the proposed development which justify the grant of development consent. The Commissioner identified them. However, the Commissioner believed that, on balance, the adverse effects of the proposal outweighed those aspects which spoke in favour of it. This Court will not interfere with this exercise of a planning judgment.
The appellant has failed to establish any of the grounds in his notice of appeal. It follows that the appeal must be dismissed.

[2003] SASC 163

3 June 2003