PRINTER FRIENDLY VERSION

Environment, Resources and Development Court of South Australia

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THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1                              This appeal arises from the decision of the City of Mitcham (“the Council”) to refuse development plan consent to Development Application No. 080/1783/2010 to construct a detached dwelling on the land situated at 426 Belair Road, Belair (“the subject land”).

2                              The Council treated the proposal[1], as a Category 3 development and undertook the requisite notification. The owners/occupiers of three adjoining properties lodged representations. The reasons for the decision of the Council to refuse consent are set out in the minutes of the Development Assessment Panel in Exhibit R1[2].

3                              At the commencement of the hearing, I viewed with the parties the subject land and the nature of the development and land generally in its near vicinity. Ms Shute, counsel for the Council, led evidence from Mr Fewster, a consulting planner. Ms Rawcliffe appeared for herself and Mr Monz, and gave evidence.

4                              The subject land is located on the eastern side of Belair Road and generally within an area that has steep slopes and sometimes rugged topography. It is a west-facing parcel of land about 85 metres south of the junction of Belair Road and Aerial Road, Belair. The Certificate of Title (Volume 5248 Folio 510) depicts a frontage of 30.53 metres and an area of 1338 square metres. At the front and rear of the land are, respectively, subservient and dominant rights-of-way. The most pertinent is the former. This part of the subject land enables free and unrestricted access from land immediately to the south to Belair Road.

5                              This general description conceals a most unusual feature of the subject land. Mr Fewster describes its physical features in the following terms[3]:

The subject land was formerly a quarry which has been vacant since the quarry operations ceased a number of years ago. Apart from a timber slat fence and stone retaining walls that extend along the northern part of the frontage, the site is devoid of any buildings or structures. There is a height differential of some 12 metres between the highest point of the rock wall and the existing ground level of the excavated area. The excavated area has a fall of approximately one metre from its back edge to the frontage and is uneven due to some relatively minor fill.

The base, sides and upper areas of the rock wall are vegetated with a mix of grasses, shrubs and medium size trees. There does not appear to be any significant or regulated trees on the site.

6                              The subject land, in this respect, is significantly different from other land in its near vicinity. On the western side of Belair Road the land is heavily vegetated, steeply sloping and devoid of buildings and structures. On the eastern side adjacent the subject land, dwellings (on allotments exceeding 1000 square metres in area) are perched on the ridgeline and, because of the existing vegetation and their elevated position relative to Belair Road, they are not a prominent feature in the streetscape. The land immediately adjacent the subject land has views down onto the sides and “floor” of the subject land. Unlike its neighbours, the frontage of the subject land is exposed to passing traffic. However, because of the way in which it has been excavated and the care with which vehicles must navigate along Belair Road, the subject land is not a dominant feature in the streetscape.

7                              I respectfully adopt Mr Fewster’s locality for the purposes of the assessment. Also, to the extent that the features which characterise the existing development in the locality are relevant, I concur with Mr Fewster’s observations that follow[4]:

From my observations the locality is of high amenity. The large spacious allotments, abundance of vegetation, sloping topography and the elevated positioning of dwellings, many with views of the Adelaide Plains, provide a distinctive open and landscape character and a pleasant living environment. I did not observe any three storey dwellings in the locality.

The key elements and distinguishing features of the locality are summarised as follows:

Ÿ       A low-density and landscape character derived from detached dwellings on large and well vegetated allotments;

Ÿ       A mix of architectural styles;

Ÿ       Dwellings of single and two storey scale sited unobtrusively on the ridge line;

Ÿ       A variety of building setbacks;

Ÿ       Naturally sloping land with an abundance of vegetation; and

Ÿ       Views over the Adelaide Plains.

8                              For reasons that will become clear, the relevance of this character as a factor in the assessment is brought into question by the most unusual and atypical features of the subject land.

9                              The subject land is within the Residential (Hills) Zone (“the Zone”). The relevant Development Plan (“the Plan”) for the Council in these proceedings is dated 3 June 2010. Figure Mit(BPA)/4 shows the subject land to be situated in a “High Bushfire Risk” area.

10                           The main features of the proposed dwelling are as follows:

·               The proposed 3 storey detached dwelling would be of a modern or contemporary architectural style;

·               Although its maximum height above the ground floor finished floor level[5] (RL 102.2) would be 8.94 metres, because the ground floor is intended to sit upon the filled portion of the subject land, parts of the building would be some 600mm higher when measured from the lowest part of its excavated base;

·               The main wall of the building would be setback about 10 metres from Belair Road. The porch, balcony and staircase would extend forward of this line to a point no closer than 7.6 metres. The setback distance from side or rear boundaries would vary considerably but be no less than 8.7 metres;

·               The majority of the private open space (104 square metres)[6] would be to the rear of the dwelling. It would consist of a covered deck, swimming pool and lawn area; and

·               The right-of-way, driveway and entry to the dwelling would be fully paved.

11                           On close inspection of the proposal depicted in Exhibit R1 an interesting aspect of its design is revealed. By elevating the rear portion of the building to a level which transitions into the lower slopes of the subject land an undercroft has been created. This facility would accommodate two rainwater tanks and appears to have the capacity for general domestic storage.

12                           Mr Fewster’s statement of evidence helpfully lists the provisions of the Plan that are relevant considerations in this appeal[7]. I have considered the proposal against all of those provisions. The most relevant, and those upon which this appeal turns, are specific to the Zone (in particular, aspects of the Desired Character Statement and Principle 6) and the Council Wide (CW) provisions that are directed to the suitability of the subject land for its intended purpose (CW Principles 6 and 15) and those for residential development that guide the height, mass and scale of dwellings (CW Principle 26) and the provision of private open space (CW Principle 17).

13                           Having carefully examined the proposal against all of the other relevant provisions and considered the realities of the subject land, I have concluded that any departure from or conflict with their terms or intent is of little planning consequence.

14                           The question of land suitability does not arise from any conflict, in general terms, between the nature of the proposal (a detached dwelling) and the broad goal expressed in Objective 1 for the Zone. Instead, it is the particular circumstances of the subject land – being a former quarry with steep sides – that enlivens the following Council Wide provisions:

6            Land, used for the erection of buildings, should be stable.

…

15    In order to prevent harm to human health or the environment, development involving a change of use to residential development or any use accommodating children and/or their activities must not be undertaken on contaminated land or on land previously used for a potentially contaminating use unless a site assessment and audit confirms that:

(a)    the land will be maintained in a condition; or

          (b)    the development will be undertaken in a manner that will not present a risk to the health and safety of the environment or occupiers of the land or land in the locality.

15                           Notwithstanding the general thrust of the Council’s case in support of its decision to refuse consent, Ms Shute submitted that the site audit (contamination) report prepared by VRS Australia Pty and the rock slope stability assessment prepared by Parsons Brinckerhoff for the purposes of an earlier proposal for a dwelling is sufficient for the assessment of the present proposal under these provisions. Having considered the relevant extracts of those reports[8], I concur with the views expressed by Mr Fewster about the approach that might be taken by the Court in the event that the appeal is allowed.

16                           At the nub of the Council’s case, expressed principally through the evidence of Mr Fewster, is its contention that the height and scale of the proposed building is in conflict with the overall goal desired for the Zone, namely to retain “the existing open and landscape character of the land” in the locality in accordance with Objective 1 and, more relevantly in respect of this matter, the following terms of Zone Principle 6 and the CW Principle 26:

6      Development should be designed and sited to relate to the slope of the land and the natural character of the area so that:

(a)    the bulk and scale of buildings respond to, rather than dominate, the natural landscape;

…

(d)    landscaping incorporating trees and shrubs of primarily indigenous species is provided to reduce the visibility, bulk and scale of buildings and structures.

…

26     (a)    Dwellings should:

(i)      not detract from the character and amenity of adjoining development;

(ii)     complement the desired character and streetscape of the locality;

(iii)    if greater than one-storey in height, minimise overshadowing and intrusion into privacy of adjoining properties and impacts due to differences in scale; and

(iv)    not be greater than two storeys or in any case 8.0 metres in height as measured from existing natural ground level (as may be determined by survey, prior to any earth works being undertaken) to the highest point of the building.

(b)    Dwellings proposed to be developed on a sloping site should be designed and sited so as to be in keeping with the slope of the land, by incorporating the following measures:

(i)      floor space should be articulated and, where appropriate, of split level design to minimise cut, fill and obtrusiveness of the proposed building;

(ii)     the roof-form and profile should be designed to correspond with the natural slope of the site.

(iii)    two-storey dwellings should be designed so that the building form and roof-form in particular are highly articulated, to minimise building bulk and visual impact.

17                           In respect of these provisions Mr Fewster’s opinion is best summarised by reference to the following passages of his statement of evidence[9]:

Although the roof of the dwelling would sit below the ridge of the surrounding rock wall, the overall bulk and mass of the dwelling is considered to be visually intrusive and overbearing within the streetscape and not in keeping with the scale of existing development and the open and landscape character of the locality. It is important to note that dwellings on the high side of Belair Road (eastern side) are typically of two storey scale and are sited unobtrusively on the ridge line amongst quite dense vegetation. The bulk and scale of the dwelling would be visually dominate due to the:

Three storey scale and building height of between 9 and 9.47 metes above existing ground level;

Ÿ    flat parapet roof form;

Ÿ    lack of building articulation;

Ÿ    wide building façade of 15.67 metres;

Ÿ    full height upper level walls;

Ÿ    projecting blade wall and balcony; and

Ÿ    blank walling.

18                           In his view, the scale of the proposal is also a factor that contributes to its failure to adequately comply with CW Principle 17 which, inter alia, calls for “sufficient private open space to accommodate recreation and leisure needs … as well as the service functions of clothes drying and domestic storage”. This failure, he contends, arises principally because of the proposal’s inability to provide for an area of private open space equivalent to 20 percent of the area of the subject land (Principle 17(e)).

19                           Having considered all of the relevant provisions of the Plan, the evidence and submissions and my observations of the subject land and its locality the issues identified by Mr Fewster, as I said earlier, are generally those upon which this appeal turns. That is to say, whether the proposal would be sufficiently consistent with the desired character for the Zone and the provisions directed to matters of height, scale and private open space is the central planning issue. I have concluded, subject to hearing from each party on conditions, that the appeal should be allowed and the decision of Council to refuse consent reversed. I do so for the following reasons:

(a)    The appearance, topography and general character of the subject land bears no resemblance to that of its neighbours in the locality. Put bluntly and realistically, it is little more than a very large and deep cavity that has despoiled an otherwise attractive residential foothills landscape. What was formally land, which no doubt had an “open and landscape character”, no longer exists. The steep and rugged punctuation of the former quarry into the topography is the dominant visual element. Its former character is absent and cannot realistically be restored with residential development. This is the reality within which the assessment must be undertaken. Although the height and scale of the proposal are factors to consider as they are below, the above terms of the desired character – contrary to the submissions and evidence in the Council’s case – carry little weight in the assessment.

(b)    It is apparent that the proposed building would conflict with the clearly expressed quantitative provisions in Principle 26(a)(iv) in respect of the height of a building. Although the magnitude of the departures are not insignificant, when viewed in the light of the analysis in (a) above and, more particularly, the central policy thrust of Principle 26, there are several factors that speak in favour of the appellants’ case. First, it is inconceivable that the height and scale of the dwelling would cause overshadowing or would be the cause of an invasion of the privacy of the adjoining dwellings. That is a fact that is plain to see on the streetscape plan[10]. Second, notwithstanding its contemporary design, the substantial side boundary setback distances and the differences between the FFL of the proposed dwelling and the FFL of existing adjacent houses together makes it most unlikely that the proposed dwelling would detract from their character nor impose deleterious visual or the amenity impacts upon them. That is a fact that is also evident from an inspection of the streetscape plan mentioned above. Third, the narrow and fleeting view of the subject land when travelling along Belair Road would have the effect of reducing, to negligible, the visual impact of the proposed dwelling on the streetscape that arise from its departure from this principle. In short, the unusual features of the subject land makes it inappropriate to apply Principle 26(a)(iv) to the letter[11].

(c)     Mr Fewster opined, quite correctly that the allocation of private open space fails to meet the quantitative measure in Principle 17(e). That is to say, it does not provide an area for that purpose equivalent to
20 percent of the subject land. Granted he expressed the view that the conflict with that provision is not fatal to the proposal. However, his approach to this aspect of the assessment does not factor in the particular and unusual circumstances of the subject land. Here again the decision in Impact Investments has relevance. In the first instance the area of the subject land that is flat and thus able to be built upon is a very small proportion of its total area. Strict compliance with Principle 17(e), within the overall policy intent of Principle 17, would be problematic in any event. The proposed building, by being constructed in multiple levels (thus reducing the ground floor area), in part, reconciles the constraint.  Second, the way in which he calculated the shortfall discounts the capacity of the land on the northern side of the dwelling to be developed and included in the equation. This factor, together with the way in which the rear of the dwelling would be developed, the available storage area beneath the deck and the ease with which the proposal would comply with Principles 17(a)-(d) inclusive and 17(f), suggests to me that the broad policy intent – to provide sufficient private open space to accommodate the needs of the occupant for recreation, leisure, service and storage - is adequately met.

20                           By memorandum dated 11 January 2012 I advised the parties of my conclusion in the above terms and invited their submissions in respect of the conditions that might apply.

21                           At the resumption of the hearing, Ms Shute produced a draft list of conditions for consideration. Ms Rawcliffe confirmed that the appellants are content with them.

22                           In my view, subject to minor amendments being made to reflect the appropriate exhibits, the conditions are appropriate.

23                           There will be an order allowing the appeal, reversing the decision of the Council and granting Development Plan Consent, subject to those conditions.