Alvaro v City of Charles Sturt No ERD-98-1219 Judgment No OE6 [1999] SAERDC 6

5 The basic facts concerning the subject land in this case are as follows:

1. The land is roughly rectangular in shape. It has an area of 754 square metres and frontages to both McDonald Grove and to part of the boating lake surrounding Delfin Island. The island is a major component of the West Lakes Estate established during the past 30 years.

2. Reserved to "the Minister of Marine" and his agents, servants and workmen are rights to entry, egress and regress and rights to break the surface of or excavate, or open up and use, a strip of the subject land three metres wide along its waterfront edge, for the purpose of constructing and maintaining bank protection walls and storing equipment and materials.

3. Mrs Alvaro lives with her husband in a large, two-storeyed dwelling on the subject land. This dwelling was erected in about 1990, following the approval of the Council.

4. Primary access to the appellant's dwelling is from McDonald Grove. Between the dwelling and the boundary of this road is a free standing garage building and a formally landscaped garden.

5. The main wall of the appellant's dwelling is over seven metres from the waterfront boundary of the subject land. Within this set-back area, and above a brick retaining wall, there is another formally laid-out garden comprising areas of lawn, flower beds and brick paving, open to views from and across the water, generally to the east.

6 The appellant sought to include the existing pergola on the subject land in the development now to be assessed, thereby amending the proposal as originally submitted. The appellant also sought to amend the height of the southern screen fence and remove the existing backing sheets from the trellis panels in both side screen fences.

7 Additional amendments, comprised the incorporation into the proposal of what came to be referred to as "side screen returns", being short sections of screen fencing between one end of each of the main screen fences and the dwelling and having the same height as the screen fences to which they would be attached. These side screen returns have, like other elements of the proposal, already been built. They are required by Mrs Alvaro to screen and provide security to narrow yards at each side of her dwelling.

8 Particulars of the screen fencing and the pergola for which consent is now sought are shown on the site plan and elevation drawings, dated January 1999, before the Court as Exhibit A3. (The doors in the side screen return are drawn on the elevations in this exhibit, presumably in error, as having a height of only 1.7 metres.)

9 The Council did not object to the making of the amendments to the proposal just mentioned, but its opposition to the development was not overcome.

10 A screen fence is a "building". Its construction is "building work", and thus "development", as defined in Section 4 of the Act, where, as in this case, it is in the Residential 1(W) Zone. The construction of a pergola is also "development" in certain circumstances. Schedule 3 to the Development Regulations, 1993, made under the Act ("the Regulations") provides "acts and activities which are not development". The relevant provisions of the schedule in this case state that:

4.(1) The construction or alteration of, or addition to, any of the following (including any incidental excavation or filling), other than in respect of a local heritage place:

(e) a fence not exceeding two metres in height (measured from the lower of the two adjoining finished ground levels), other than -

(i) a fence ..... in a Residential 1W Zone ..... in the area of the City of Hindmarsh and Woodville ....."

(3) Other than in respect of a local heritage place -

(c) the construction of a pergola associated with an existing dwelling (whether attached to the building or freestanding) -

(iii) no part of which is higher than four metres above the ground ....."

12 The pergola on the subject land for which consent is sought is associated with an existing dwelling. It does not have a roof and is less than four metres high above the ground, but only two freestanding sides would be open - one being attached to the dwelling and the other being attached to the northern screen fence along the whole of one side. It could be said, therefore, that construction of the proposed pergola is not an activity which is excluded from "development", and so requires consent. Mr Costello, for the appellant, said that there was some doubt about this, but the point was not argued. In the circumstances, I accept the inclusion of the pergola with the other amendments, in the proposal before the Court, observing, in any case, that the pergola and the screen fences together comprise an integrated group of buildings intended by the appellant to be attached and ancillary to the existing dwelling on the subject land.

13 The pergola stands on the northern part of the yard between the dwelling and the waterfront. It is set back, behind a garden bed, 750mm from the north-eastern boundary of the subject land and thereby straddles the greater part of the width of a section of the easement over the land. In plan, it is roughly rectangular, with sides about six metres long. The top of the pergola is 2.74 metres above ground level and constructed of cream-painted timber beams supported by green-painted timber posts - these matching the colours in which features of the waterfront facade of the dwelling are painted. Shade-cloth covers the pergola, beneath which is a brick-paved terrace on which stands a table and chairs, apparently used for outdoor living.

14 The main part of the screen fence abutting the northern boundary is 2.59 metres high above ground level. It sits directly under a top beam of the pergola. This fence is required by the appellant to give privacy from the allotment next door. It has five lattice panels of "Hardiscreen" (a compressed fibre cement material) within timber framing and a post feature, about 300mm lower than the fence, at its eastern end. The northern side screen return is constructed of similar materials and contains a door giving access to a side yard. Along the base of the screen fence, beneath the pergola, is a raised planter box. Abutting, and on the outer side of the screen fence is an existing brush fence, at its highest, 1.7 metres above the finished ground level on the subject land, reducing to 1.2 metres above this ground level at its eastern end. This fence comes to within 1.8 metres of the northern corner of the subject land, the remaining section of the boundary up to that corner having along it a low, open, tubular steel, fence. Most of the lower parts of the screen fence, as viewed from the north, will be concealed by the brush fence.

15 The existing screen fence abutting the southern boundary of the subject land is also proposed to increase the appellant's privacy. It has been built 400mm higher than the fence which is now proposed. It is intended that four panels of this fence would be 2.1 metres high, and constructed of materials similar to those used in the northern fence. A feature panel, roughly half way along this fence, is to be 2.5 metres high and a smaller panel and a column at the eastern end is to be stepped down to a height of 1.8 metres. The height of the existing side screen return connected to the screen fence, again containing a door for access to a side yard, is to be reduced to 2.1 metres high overall. There is a low, plastic-covered wire mesh fence along the part of the southern boundary of the subject land abutting the southern screen fence.

16 Both sides of both screen fences and side screen returns are to be painted cream, to match one of the feature colours used in the dwelling. Creepers over the screen fences are to be grown, respectively, from the planter box abutting the northern screen fence and a garden bed at the foot of the southern screen fence.

17 The fact that the development for which consent is sought has already been carried out is not a relevant factor in determining whether consent should be granted: Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321 at 323.

18 The Act in effect requires assessment of the proposed development to be against the relevant provisions of the Development Plan. In this case, the appropriate plan is the Hindmarsh and Woodville (City) Development Plan, published on 18 December, 1997. This is the plan authorised under the Act at the time the application for consent was made (i.e. on or about 1 May 1998) and which covers part of the area of the City of Charles Sturt. The subject land lies in the Residential 1 (Woodville) Zone, shown by the symbol "R1(W)" on Zone Map HiWo/6 in the Development Plan. Objective 1 for this zone states that it is:

"A zone primarily accommodating detached dwellings at low densities on individual allotments."

19 All of the land with frontage to McDonald Grove is in the R1(W) Zone. McDonald Grove has a horseshoe-shaped configuration. It has a link to Delfin Drive, a minor collector road on Delfin Island, leading, in turn, to the arterial road system to the south. McDonald Grove provides frontage access to numerous residential allotments, the majority of which have another frontage to the boating lake. The subject land is on a curved part of the island which projects out into the lake.

20 The part of the boating lake directly overlooked from the subject land, and another, almost fully-developed portion of the West Lakes Estate about 120 metres across the lake to the east, is in the same zone as the subject land.

21 Mr GA Burns, a qualified and experienced town planning consultant, gave evidence to the Court that the locality of the subject land, to which reference should be made in assessing the development, includes land on Delfin Island between McDonald Grove and the boating lake; specifically, three allotments to the northwest (one of which, abutting the subject land, is vacant) and six allotments to the south. The eastern part of his locality, as shown on an aerial photographic base map, includes, across the lake from the subject land, a narrow recreation reserve on the lake's edge and a row of built-up allotments behind it.

22 Mr MH Robertson, an appropriately qualified and experienced urban planner in the employ of the Council, initially identified a locality much smaller than that proposed by Mr Burns, but after reconsideration, he came to accept, as I do, that Mr Burns' locality is the appropriate one to which reference should be made.

23 The main issue in dispute concerns the appearance of the proposed buildings - particularly in respect of the height and materials of the screen fences abutting the side boundaries of the subject land and their location adjacent to the lake frontage. Provisions of the Development Plan which concern matters of appearance, some of which the Council mentioned in its decision, include:

"Objective 40: The amenity of localities not impaired by the appearance of land, buildings and objects";

i A Metropolitan Adelaide principle of development control;

"9 Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.";

"45 The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated."; and

i The following principles of development control for the R1(W) Zone:

"3 The design, external colours and materials of all buildings, structures and fences should be in harmony with the existing local character of the area."

(a) generally not be erected forward of the building line except where adjacent to walkways and reserve areas;

(c) generally be constructed of brush or brick so as to be compatible with that existing in the locality."

"6 Fences and courtyard walls located within 7.5 metres from the nearest point on any boundary adjacent to the lake edge should be consistent with the character and form of fencing in the locality and should not detract from the general amenity and appearance of the area."

24 I have taken the locality, as referred to in these provisions, as being the same area as that defined by Mr Burns, which area, he said:

"..... exhibits a high level of amenity, due in large part to the relationship between the houses and the water, the high standard of house construction along the lake front, and the associated high standard of landscaping both along the road reserves and on private property. The lack of through traffic in McDonald Grove ..... also contributes to the locality's amenity."

25 This amenity is somewhat, but not greatly, diminished by the vacant condition of the allotment at 43 McDonald Grove; a condition which makes that allotment accessible to persons to come unlawfully on to it and create a nuisance.

26 Before determining the extent, if any, to which the proposed screen fences, and indeed the pergola, would comply with the more broadly-stated provisions of the Development Plan just cited, it is appropriate to consider what is intended by the particularity of the relevant principles of development control for the zone.

27 Dealing first with Principle 5, there was some belief expressed during the hearing that clause (a) applies to the circumstances of the proposal, but I do not think that it does. The term "building line" is one which commonly refers to the line, relative to the boundary of the road, behind which buildings are, or should be, built. Such building lines are specifically prescribed in Council Wide Principle of Development Control 99 and in relation to the complying development of a detached dwelling in Principle of Development Control 7 for the zone. In my view, clause (a) applies to fences - located along side boundaries or otherwise - between a building line and a boundary of a road, except fences adjacent to walkways and reserves. There may be some argument about the application of this clause in certain circumstances, but in my opinion, it has no application to the proposal before the Court.

28 Clause (b) of Principle 5 has no application in this case because the proposed fences would not be erected along the edge of the lake, nor would they be erected along - although they would be erected almost up to - the boundary of the subject land adjacent to the edge of the lake. The "lake edge", insofar as it means the water's edge, lies some little distance from the nearest boundary of the subject land, being partly separated from it by a narrow concrete path and, below that, a rock embankment sloping down.

29 Clause (c) of Principle 5 is advisory, and prescribes what should "generally" be the materials of construction of fences "so as to be compatible with that existing in the locality". It seems to imply that brush or brick fencing would be compatible with that existing in the locality. Principle 3 is not so limited in relation to fence materials in that it states, in part, that the materials of all fences should be in harmony with the existing local character of "the area". For this principle to be read consistently with Principles 5(c) and 6), I consider that "the area", referred to in Principle 3, in which fences other than brush or brick fences might prevail, is equivalent to "the locality". Although little hangs on the point, I am also inclined to think that "the area", referred to in Principle 6 is smaller in extent than "the locality".

30 Zone Principle 5(c) is not satisfied by the proposal insofar as that principle expresses a preference for materials different from those of which the proposed fences would be constructed, but basically this principle implies a need for compatibility with what exists. Principle 6 also seeks consistency with what exists as well as avoidance of adverse impacts on the "general" amenity and appearance of the area. The protection of amenity and the promotion of visual harmony within the locality, or the local area, are also underlying themes of Metropolitan Adelaide Objective 40, and Principle 9 and Council Wide Principle 45, as well as Zone Principles 3, 5(c) and 6.

31 With reference to such provisions of the Development Plan, Mr Robertson observed that:

"The character and form of side boundary fencing within the lakefront environment of the locality is generally no higher than 1.8 metres, constructed of brush, with many fences tapering down to approximately 1.0 to 1.2 metres at the lakes edge.

The height and length of the screen structures will be at odds with the existing local character rather than harmonising with it as required by Zone Principle 3. In addition, the structures are not consistent with the predominant use of brush materials and the existing height and form of fencing in the locality as required by Zone Principles 5 and 6."

32 Mr Burns saw the situation differently. He had noted the existence within the locality of a wide range of fence types and other structures between dwellings and the lakefront, including "retaining walls, brush fences, a lattice type archway, a rope fence and a brick gazebo type building extension". He saw no essential inconsistency with the diversity of fencing styles and other structures along the waterfront. In addition, he noted that the neighbour to the south of the subject land had planted trees and shrubs close to the boundary of the subject land - thereby partly obscuring the neighbour's views to the north east. The screen fence, said Mr Burns, would do little to restrict further those views. The neighbour to the south, like other residents whose properties face onto the lake, will, "continue to enjoy views across the water". Further Mr Burns said, the lattices, without the back sheets, would create a greater sense of openness along the lake frontage than exists at present, although, he believed that there should be planting in front of the screen fences - by which I understand him to mean on the sides facing into the subject land - to soften their appearance.

33 I acknowledge that there is considerable variation in the design, colours and materials of existing fences close to the lakefront within the locality of the subject land. These fences and other structures, including retaining walls and gazebos, close to the edge of the lake, together with adjacent vegetation and other landscape features, define the "existing local character of the area" referred to in Zone Principle 3, with which elements of the proposed development should be in harmony. The relevant "character and form" of the existing fencing in the locality, as mentioned in Zone Principle 6, is, in my opinion, that of fencing close to the edge of the lake. On the view I observed that such fencing is generally lower in height above natural ground level - even filled ground level - than the fencing further from the edge of the lake.

34 The proposed screen fencing would be higher than existing fencing in the locality in a similar position relative to the edge of the lake. This is true particularly of the northern screen fence, the height of which would effectively be increased by the height of the beam at the northern edge of the top of the pergola which, as proposed, is to sit on top of the fence.

35 The height of the fencing is an important element of its "character and form", but not the only element to be assessed . The character of fencing is also to be evaluated in terms of its colour and materials. The colour of the proposed cream-painted screen fencing will contrast with the colour of brush fencing; brush being a material commonly used in fencing in the locality close to the edge of the lake (and, of course, along the northern boundary of the subject land). While, in the locality, brush is one of the two fencing materials endorsed by Zone Principle 5(c) as being "compatible with that existing in the locality", I do not see this provision of the principle as saying that the use of lattice material is necessarily inappropriate for use in screen fencing in the present circumstances. If creepers are grown on both screen fences, as is currently proposed, it is reasonable to expect the climbing vegetation to penetrate the lattice and be seen on both sides of it, softening the visual impact of the form and colour of the screen fencing, and to some extent also its height.

36 In relation to existing fencing in the locality, I note that the lattice panels and the external colours and materials of the proposed fences are reflected in, and in some cases are similar to, features of a number of structures, including dwellings, existing in the locality. In these circumstances I find that the characteristics of the proposed screen fencing, except in respect of the height (or what would be perceived to be the height) of the northern screen fence and the colour of the northern side of that fence, are, on balance, satisfactory. The northern screen fence should be reduced in height and painted a colour, on the northern side - say a pale brown/grey colour - which will closely correspond with the colour of the existing brush fence abutting it.

37 In relation to the more general character and amenity of the locality, I also find the proposed screen fences, again if altered in respect of the height and colour of the northern fence, as above, would be, on balance, satisfactory. In this regard, I take into account the curved edge of Delfin Island on which the subject land is located, and the consequential minimal extent to which fences, and indeed other buildings, contributing to the character of the locality, may be seen in juxtaposition, and thereby compared (except, of course, from points out in the lake or quite distant points on the opposite side of the lake from the subject land). I also take into account the quite substantial width of allotments along the lakefront - some 23 metres or more - separating adjacent side boundary fences. Further, I note that the appellant's dwelling appears significantly larger, in terms of its height and bulk, than any other dwellings nearby. The scale of the proposed fences, as compared with other buildings in the locality would be less noticeable due to the relative dominance of the dwelling on the subject land, in close association with which the fences would be seen. While the upper part of the northern screen fence would be exposed to view from the north, so long as the abutting allotment is vacant, it may reasonably be expected that this vacant allotment will eventually be built on as it would seem to be the only unused private land in the surrounding locality, if not in a large part of the West Lakes Estate nearby.

38 The pergola has a simple shape. Its visual impact would be limited by its light and open form of construction. These features give the structure little sense of substance and virtually no sense of bulk. Again, in comparison with the dwelling to which it is attached, the pergola has a modest scale. Its colours harmonise with those of the dwelling and its height matches the height of the adjoining ground floor rooms. Most views of the pergola from surrounding land will be side-on, or will show the pergola against the backdrop of the dwelling. The horizontal beams at the top of the pergola will be higher than the abutting screen fence, but they have a vertical thickness of only 150mm and if separated from the top of the screen fence they would not be seen from the north as having a dominant appearance.

39 Certainly, the pergola projects forward of the dwelling, to a point close to the nearest edge of the subject land to the lake, but the relevant provisions of the Development Plan contain no proscription of structures in this position. Again, it is only desired that there should be no impairment of the amenity of the locality, no impairment of the character of the zone and that the features of the building be in harmony with the existing local character of the area. In all, and on balance, I find that in terms of its visual impact, the pergola is acceptable, although once more I am bound to remark that it is not common in the locality for structures of the size of the pergola to be erected close to the edge of the lake.

40 The existence of the proposed screen fences, in respect of their heights (altered as I have intimated one should be), and of the fences and the pergola, in respect of their location relative to the edge of the lake, should not be seen as establishing a precedent for additional substantial building along the lakefront. The conditions on the lakefront allotments vary considerably. Conditions on the subject land, ignoring the fact that screen fences and a pergola have been built, are distinctive in regard to the size of the appellant's dwelling. The location of the subject land next to a vacant allotment is another distinguishing circumstance in this case. The particulars of the proposal are distinctive, but not so as would make them wholly unacceptable in planning terms.

41 Objection was taken by the Council to the fact that part of the pergola would stand on and over a part of the easement on the land, notwithstanding the absence of evidence that the substantial filling and the retaining wall which has been placed on the easement are impediments to the exercise of the Minister's rights over the easement. There was no acceptable evidence that the proposed structures are, or would be, objected to by the Minister (evidence given of a conversation with an unnamed member of the staff of the Minister's Department having no probative value). Thus I find no support for the Council's concern about the proposed building over the easement.

42 Before I complete this assessment, one other matter raised in submissions requires comment. It was argued by the Council that the evidence of the expert witness brought before the Court by the appellant was tainted by the fact of that witness having been retained by the appellant at all stages of processing of the application for consent. It was put to me, in effect, that it would be dangerous to prefer evidence from an expert witness who was involved in giving advice on a matter prior to coming to the Court, to the evidence of an expert witness employed by a Council.

43 The roles and responsibilities of expert witnesses have been considered on many occasions by the Court and its predecessors, the Planning Appeal Tribunal and the Planning Appeal Board: eg Barossa Region Residents v District Council of Angaston & Grosser 1996 EDLR 667 and Unley Property Development v City of Holdfast Bay ERDC No. 1159 of 1998, to mention two recent cases. It is well-established that a professional person, in giving evidence as an expert to the Court, needs to be conscious of, and avoid as far as is practicable, being seen as a representative of or agent for a party in an action before the Court - whether that party is the appellant, a planning authority, a representor or an advising agency - as distinct from the role which the same person is to perform in providing independent expert assistance to the Court. This is not to say that a professional person should not, prior to coming before the Court, have given professional advice to a client or employer, either as an individual or in the capacity of an employee of a consultant firm or a department of a public agency. Whether such prior involvement compromises the professional independence of a witness before the Court as an expert is for the Court to determine on the facts relating to that involvement.

44 Expert witnesses in this Court commonly have a history of involvement in the matter which is the subject of the Court's inquiry. Such involvement may be in relation to a proposal which is different, in some respects, from that before the Court, in which case the previous actions and previously expressed opinions of the witness may not be relevant. In the hearing of a matter by the Court de novo, a knowledge of the history of proceedings leading to the appeal is, in my opinion, relevant primarily to the extent only that it helps in understanding the nature and present circumstances of the subject of appeal. Thus it will normally be appropriate to explore the independence of an expert witness only if, prima facie, there is an indication given in the evidence or in the known past actions of the witness in relation to the matter before the Court of actual or possible bias or a lack of independence. In my view, such bias or lack of independence does not follow, necessarily, from the witness having been previously engaged by a party to the appeal:

* to provide a professional opinion to that party; or

* to provide advice of a professional opinion to others; or

* to communicate facts to others on behalf of the party, be they facts as to the particulars of an application or facts as to the decision of a planning authority or other public agency.

It is, however, not conductive to a perception of independence for a consultant engaged by an applicant, who may someday be called as an expert witness, to sign the form of application for consent (as happened in this case) or a notice of appeal, but such actions do not, in these terms, vitiate that consultant's actual independence.

45 All expert witnesses are before the Court as individuals. They are most at risk of a perception of bias or lack of independence when there is some evidence that in expressing professional opinions prior to or during the proceedings in the Court, they have, or may have, said something they had been instructed or advised to say (other than in relation to matters of fact), as distinct from expressing an objective and individual expert opinion. Some witnesses are more liable to risk in these terms than others, but virtue in the matter of independence does not necessarily reside with the expert witnesses called by any particular party to an appeal.

46 Assessment of the independence of an expert can be difficult, but in relation to the evidence given in the instant matter, I have no difficulty in accepting the professional integrity, independence and objectivity of both expert witnesses.

47 It is the finding of the Court that the decision of the Council in the matter of an application for provisional development plan consent by Mrs VA Alvaro, in relation to development number 252/00679/98, is to be reversed.

48 Provisional development plan consent is to be granted to the amended proposal illustrated on the site plan and elevation drawings, dated January 1999, comprising Exhibit A3 before the Court, as further amended by and subject to the following conditions:

1. No part of the northern screen fence, or the northern side screen return, shall be higher than 2,100mm above the existing ground level.

2. The doors in the northern and southern side screen returns shall be 2,010mm high.

3. The main part of the column at the eastern end of the northern screen fence (ie excluding the decorative feature on its top) shall be no higher than 1,800mm above the existing ground level (thus bringing it to the same height above existing ground level as the column at the eastern end of the proposed southern screen fence).

4. There shall be no backing sheet on the northern side of the section of the northern screen fence abutting the tubular steel fence on the northern boundary of the subject land. The backing sheets on the northern and southern screen fences shall otherwise be removed as proposed on the elevation drawing forming part of Exhibit A3 before the Court.

5.1 the section of the northern screen fence protruding above the existing brush fence on the northern boundary of the subject land;

5.2 the section of the northern screen fence abutting the tubular steel fence on the northern boundary of the subject land; and

shall be painted, and kept painted, in a colour closely matching, to the reasonable satisfaction of the Council, the colour of the existing brush fence.

6. In the event of the section of the existing brush fence on the northern boundary of the subject land abutting the northern screen fence being removed, the residual backing sheet attached to that fence shall be removed and the whole of the northern side of the northern screen fence shall be painted and kept painted in the colour referred to in condition 5, unless the existing brush fence is replaced by another fence.

7. The northern sides of the northern posts of the pergola exposed to view above the northern screen fence, and all other posts of the pergola, shall be painted, and kept painted, a dark green to match, to the reasonable satisfaction of the Council, the existing colour of the verandah posts, gutters and balustrade on the balcony of the abutting dwelling.

8. All surfaces of the top of the pergola, both sides of the northern and southern screen fences (except as required by condition 5) and both sides of the northern and southern side screen returns (including the doors therein) shall be painted, and kept painted, a cream colour to match, to the reasonable satisfaction of the Council, the similar colour of parts of the adjacent exterior of the abutting dwelling.

9. Evergreen climbing vegetation shall be grown and maintained in good health and condition, to the reasonable satisfaction of the Council, over, and through apertures in, the whole of the surfaces of the northern and southern screen fences (excluding the side screen returns), all dead or diseased climbing vegetation being replaced.

49 A copy of Exhibit A3 is to remain on the file of the Court.

50 An order shall be made to give effect to this decision.