St Ann's College v Corporation of City of Adelaide

[1999] SASC 479

ST ANN’S COLLEGE INC v THE CORPORATION OF THE CITY OF ADELAIDE AND RENTON
[1999] SASC 479

Full Court:  Duggan, Debelle & Williams JJ

1. DUGGAN J.      I agree with the reasons given by Debelle J.

2. I would grant leave to appeal in so far as it is necessary to do so, but I would dismiss the appeal.

3. DEBELLE J.     This is an appeal from a decision of the Environment Resources and Development Court (“the ERD Court”).

4. St Ann’s College applied to the Corporation of the City of Adelaide (“the Council”) for development consent to undertake alterations and additions to its existing residential university college at North Adelaide. The development was classified by the Council as a Category 3 development and the Council gave notice of the development pursuant to s 38 of the Development Act 1993. The Council received representations in favour of and objecting to the proposed development. One of those who objected was Mr Ian Renton. The Council granted development consent to the proposed additions and alterations. Mr Renton appealed to the ERD Court against the grant of development consent. The court upheld the appeal and set aside the decision of the Council. From that decision, St Ann’s College (“the College”) appeals to this court.

5. The College occupies a large site at the corner of Brougham Place and Melbourne Street, North Adelaide.  Its buildings include two cottages on land which has a frontage to Melbourne Street.  The cottages are at 292 and 298 Melbourne Street.  Despite the street numbering, the cottages adjoin one another.  The proposed development involves the demolition of those two cottages.  It is that fact which gives rise to the issues for determination in this appeal.

The Development Plan

1. The issues involve interpretation of the City of Adelaide Development Plan which came into force on 31 August 1998.  The Plan divides the City of Adelaide into 88 precincts.  The provisions of the Plan relating to each of those precincts prescribes the manner in which it is intended that the precincts should be developed.  In addition, it contains principles of development control which apply in most parts of the Council area.

2. The grounds of the College lie within three of the precincts prescribed by the Plan.  They are -

• R.16 Stanley Street West Precinct

• R.19 Brougham Place East Precinct

• R.20 Melbourne Street West Precinct.

The ERD Court concluded that the provisions concerning Precincts R.16 and R.19 did not require refusal of the intended development.  There is no appeal from that conclusion.  The court also concluded that the provisions relating to the R.20 Precinct were relevant to the question whether the decision of the Council should be upheld.  The court also held that it was necessary to have regard to Principles 24, 25 and 26 of the principles of development control.

1. The ERD Court held that the proposed development failed to satisfy the provisions of Principle 26.  The court then went on to consider whether the proposal satisfied the provisions of the Development Plan and, in particular, whether it satisfied what it called “the precinct character and townscape context provisions” prescribed for in the R.20 Precinct.  It held that it did not.  For those and other reasons, the ERD Court allowed the appeal and set aside the grant of development consent.

2. The College appeals on two grounds.  The first is that the ERD Court erred in its interpretation of Principle 26.  That is clearly a question of law as it involves the interpretation of principles of development control.  A right of appeal therefore lies to this court pursuant to s 30(2) of the Environment Resources and Development Court Act 1993. 

3. The second ground of appeal does not clearly involve a question of law.  It concerned the manner in which the ERD Court had approached the townscape context provisions for the R.20 Precinct.  It does not, on its face, raise a question of law.  The College had not obtained leave to appeal.  The respondent objected to the competency of the appeal.  We decided that the appropriate course was to hear the parties, reserving the question whether it was proper to grant leave to appeal in respect of the second ground.

The Principles of Development Control

1. The two houses which the College proposes to demolish formed part of a group of four such houses identified as local heritage places by the Townscape Context and Local Heritage Assessment undertaken by the Council during 1992 and 1993.  The four houses were also identified as a significant townscape group.  However, only one of the houses was designated in the Development Plan as a local heritage item.  It is the house at 288 Melbourne Street.  It has been restored and is used as offices.  That house is immediately to the east of the two houses owned by the College.  The most easterly house was at 282 Melbourne Street.  Early in 1999 that house was demolished to allow for a townhouse development.  It is the fact that the College proposes to demolish the two houses which adjoin to 288 which require consideration of Principles 23 to 26.

2. Principles 23 to 26 provide:

   “P23   HERITAGE ITEMS

   Development of items within the City of Adelaide listed on the following, shall conserve the substantial whole of the items:

   (a)   Register of State Heritage Items.

   (b) Interim List established by the South Australian Heritage Act, 1978.

   (c)  Register of City of Adelaide Heritage Items.

   (d)  Where adaptation of such items involves additional construction, part demolition or where alterations are proposed to the fabric of such items, development shall neither detract from nor destroy their cultural significance.

   (e)  Development on a conservation site shall conserve the setting of the physical fabric of the item.  Any development on a conservation site should respect and complement the character of the item and its setting in terms of context, scale, form, materials, external finishes and colour.

   P24     DEVELOPMENT ADJOINING HERITAGE ITEMS

   The design and location of buildings on a site adjoining a conservation site, should respect and complement the built-form character of the item of City or State heritage on that site.

   P25     LOCAL HERITAGE ITEMS - CORE AND FRAME DISTRICTS

   Within the Core and Frame Districts, development shall conserve, retain and enhance local heritage items to the depth specified in the table below, and any development on the site of a local heritage item shall occur behind that set-back unless, an applicant can demonstrate, and Council is satisfied, that such development positively contributes to the townscape significance of the local heritage item and its context in the street.

   Any alteration or addition to a local heritage item should respect and complement the built-form character of that item in terms of architectural style, scale, set-back, siting, external materials, finishes and colour.

   Development on sites adjacent to local heritage items should be designed and sited to have regard to the built-form character of those items in terms of scale, set-back, podium height, siting, external materials, finishes and colour.

   [This principle then contains a table prescribing the required set-back and retention depths.]

   P26     LOCAL HERITAGE ITEMS - RESIDENTIAL DISTRICT

   Within the Residential District, development shall conserve, retain and enhance the visible frontage and visible side wall returns of the local heritage items.

   Development behind a local heritage item shall be designed and sited so as to respect and complement the retained elements of the item.

   Any alteration or addition to a local heritage item should respect and complement the built-form character of the item in terms of architectural style, scale, set-back, siting, external materials, finishes and colour.

   Development adjacent to a local heritage item should be designed and sited to have regard to the retained elements of the item in terms of built-form, scale, set-back, siting, external materials, finishes and colour.”  [Emphasis added.]

It is the last emphasised paragraph of Principle 26 which is relevant in this appeal.  In the ERD Court, counsel for the College had submitted that that paragraph did not apply to this development because it applied only to developments which are adjacent to and on the same site as the heritage item.  Thus, it was contended, as the development proposed by the College was on a different site from the only listed heritage item, namely, the house at 288 Melbourne Street, Principle 26 did not apply.  Counsel for the College also contended that the submission was borne out when Principles 24 to 26 were read together.  The ERD Court rejected this submission.  It held that the last sentence in Principle 26 required that those who design developments adjacent to heritage items should design and site the development in such a way that it does not unduly visually impinge upon, compete with, or damage the heritage value and general setting of the item.

1. Mr Hayes QC, who appeared for the College on this appeal, repeated the arguments which had been advanced in the ERD Court.  He submitted that Principle 26 was not applicable to the development.  He contrasted the terms in which Principles 24, 25 and 26 were expressed, submitting that a distinction is drawn between development on sites adjacent to local heritage items and development which is adjacent to a local heritage item but is on the same site as that item.  Thus, he contended, the last sentence of Principle 26 applies only to a development adjacent to and on the same site as a local heritage item.

2. For the reasons which follow, this argument must fail.  The ERD Court has correctly interpreted the meaning and effect of Principle 26.  When Principles 23 to 26 are read together, it is apparent that, in the case of both conservation sites and local heritage items, the Plan prescribes standards for development both on the site and on an adjoining site.  The Core and Frame Districts are the Central Business District and adjoining areas.  They comprise the whole of the area bounded by the four terraces, save and except for substantial Residential Districts which, broadly speaking, are south of Gouger Street and Angas Street.  There are also substantial Residential Districts in North Adelaide.  Most of the 88 precincts are in the Core, Frame and Residential Districts.  The remaining precincts are the Festival Centre Precinct, the Government House Precinct, the University/Hospital Precinct and 18 precincts in the parklands.  Thus, the provisions of Principles 23 to 26 prescribe controls for most of the buildings within the Council area.

3. In the case of conservation sites, the standards for development on the site are prescribed by para (e) of Principle 23 and for development on adjoining sites by Principle 24.  In the case of local heritage items, there are two sets of standards.  The first is for Core and Frame Districts and is contained in Principle 25.  The second is for Residential Districts and is contained in Principle 26.  Principle 25 prescribes standards for development on sites adjacent to local heritage items.  It also prescribes standards for development on the site.  The broad scheme of Principle 26 follows the broad scheme of Principle 25 in that it first prescribes standards for development on the site of the local heritage item and then for development on adjoining sites.  The first paragraph of Principle 26 addresses the front and the side walls of the item.  The second paragraph addresses development on the site and behind the item.  The third paragraph prescribes standards for alterations and additions to the local heritage item.  All that remains is to deal with the development on adjoining sites.  If this interpretation is adopted, there is a consistent approach for the conservation of local heritage items in Residential Districts as well as in Core and Frame Districts, that is to say, in the greater part of the Council area on which buildings are constructed.  The interpretation for which Mr Hayes QC contends would have the consequence that the standards to be applied in Residential Districts would differ, in that there would be no standards in relation to development on sites which adjoin the site of a local heritage item.  There is no reasonable basis nor any policy reason for excluding from Residential Districts the same kind of control in relation to local heritage which exists in Core and Frame Districts and also applies in the case of conservation sites.  Indeed, policy reasons suggest that residential areas should have the same controls.

4. The provisions of the Development Plan are not to be construed like a statute.  A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation.  It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates:  Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187 approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270 - 271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. The plan must be considered as a whole for the purposes of determining its purpose and intent. When Principles 23 to 26 are considered as a whole, it can be seen that in this instance the purpose and intent is to prescribe standards for development on the site of local heritage items as well as development on sites adjoining the local heritage item.

The Townscape Context

1. The other ground of appeal concerned the intended character of the R.20 Precinct and, in particular, what the Plan describes as its “townscape context”.  The relevant provisions concerning the desired character of the precinct state:

   “The Melbourne Street West Precinct should continue to be the focus of consulting rooms and office development in Lower North Adelaide.  Contemporary interpretation of traditional building forms may be used and the prevailing low-scale townscape character, established by former residential buildings set-back from the street in landscaped grounds, should be retained.  The public environment of Melbourne Street should be upgraded to enhance the character and amenity of the Precinct.

   While the significant volume of both through and local traffic will continue, pedestrian amenity and safety in the Precinct should be maintained at a high level.”

The provisions relating to the Precinct also expressly recognise the contribution made by the combination of these four (now three) houses to the character of the townscape in Melbourne Street at its western end.  That appears later in R.20 and reads:

“Townscape Context

Development should contribute to the creation of an attractive and cohesive townscape characterized by contemporary architecture which complements the existing traditional residential scale and character of Melbourne Street and Lower North Adelaide as a whole.

A variety of architectural expression and finishes may be appropriate but the use of brightly coloured, black, or highly reflective surfaces should be avoided.  Particular care should be taken with the design, bulk and siting of new buildings to ensure that the amenity and character of adjoining Precincts are not diminished.

Towards the western end of the northern Melbourne Street frontage the townscape character is established by a small group of identical stone cottages of consistent scale, form and siting.  This townscape should be conserved through the retention and restoration of these buildings.  Development should be by rear infill of a compatible scale and character.

On Melbourne Street, development should be of a high standard of design appropriate to its frontage on one of the City’s major shopping streets.”

Although the contribution of the four houses to the townscape is identified in this way, only one of the houses, the house at 288 Melbourne Street, is identified as a local heritage item, that is to say, a building which should be retained and enhanced by development in the manner prescribed by Principle 26:  see the heading “Local Heritage Items” in R.20.

1. The ERD Court concluded that the proposed development, whatever its architectural merits, had little, if anything, in common with the streetscape at this end of Melbourne Street.  Mr Hayes QC submitted that the ERD Court had erred in its approach, in that it failed to give any or sufficient weight to that aspect of the desired future character of the R.20 Precinct that seeks development which contributes to “the creation of an attractive and cohesive townscape characterised by contemporary architecture which complements the existing traditional residential scale and character of Melbourne Street and Lower North Adelaide as a whole”.  He submitted that the ERD Court had placed too heavy an emphasis upon a survey of buildings in the precinct conducted by Mr Bechervaise, that emphasis being at the expense of evidence from two other expert architects.

2. The criticisms are misplaced.  It is apparent from the reasons of the ERD Court that it had regard to all of the relevant provisions of the Development Plan.  It had regard to the relevant provisions of the R.20 Precinct.  The court weighed the evidence from all of the architects.  It was careful not to allow itself to be drawn into questions of architectural merit or taste and it was at pains to ensure that it determined the issues by reference only to the relevant provisions of the Development Plan.  It was open to it to accept, as it did, the evidence of Mr Bechervaise.  It was also open on the evidence to conclude that the proposed development was not consistent with the streetscape at the end of Melbourne Street.

3. At times, the argument presented by Mr Hayes QC suggested that the real complaint of the College was with the planning judgment which the court had made on this question.  As a general rule, the court will not examine such issues.  It is well settled that this court will interfere with the ERD Court’s conclusions upon essentially planning issues in exceptional cases only.  The court does not sit to hear argument as to pure planning issues unless the ERD 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.  In other words, this court is reluctant to substitute its planning opinion for that of the ERD Court and will be minded to do so only where the appellant is able to demonstrate some fundamental departure from proper planning principles:  Ampol Road Pantry Pty Ltd v City of Brighton (1983) 62 SASR 165 at 173. The decision of the ERD Court in this case does not in any way a call for any interference by this court with the determination of the planning issues. The issues were finely balanced. It cannot be said that the decision of the ERD Court was not a decision which could not reasonably have been reached.

4. The question whether the ERD Court had erred in its approach was, I think, a question in which it would have been proper to grant leave to appeal.  However, for the reasons above, I would dismiss this appeal.

5. WILLIAMS J.    I agree.