Blanch & Ors v City of Unley & Routley No ERD-02-108 [2002] SAERDC 48

Certificate of Title: Volume 5456, Folios 196,197,198,

Proposed development: Erection of new building for use as service trade premises

Relevant Development Plan: Unley (City) (Consolidated 25 October 2001)

When this matter came on for hearing, the appellants were represented by Mr J Levinson, of counsel, the Council by Ms Sybella Blencowe, of counsel, and the second respondent by Mr. J McElhinney, of counsel. Sworn evidence was given by Mr A Rumsby, Mr J Smith and Mr D Hutchison, all qualified and experienced town planning consultants. The Court conducted a view of the subject land and its locality, and received a number of exhibits.

The subject land comprises three allotments situated at the junction of Unley Road and Austral Terrace, Malvern, on the eastern side of Unley Road and some 250m north of the intersection of Unley Road and Cross Road. The three allotments have a combined frontage to Unley Road of some 51.82m and a frontage to Austral Terrace of some 48.82m. This produces a combined site area of some 2,530m2.

The subject land is currently vacant, but previously contained the single-storey Dunbar nursing home complex which had a floor area of approximately 900m2. That complex was demolished in late 2000.

There are four significant elm trees adjacent to the Unley Road alignment, in the north-western part of the subject land. Because the property boundary has been set back approximately 2m from the edge of the footpath to allow for future road widening, the four trees are located partially on the subject land and partially within the road reserve.

The eastern boundary of the subject land is fenced with a galvanised iron fence, painted in part and approximately 1.3m in height, together with extended lattice screening, shedding and garage walling along the northern section of that boundary, which is shared with a detached dwelling (no. 62 Austral Terrace) which has a frontage to Austral Terrace.

In their evidence Mr Rumsby, Mr Smith and Mr Hutchison defined the locality in very similar terms. Essentially it takes in development on both sides of Unley Road, extending south of the subject land to Cross Road and north to Winchester Street. To the eastward the locality was generally agreed to extend along Austral Terrace as far as the junction of Rugby Street. Within the locality so defined, land on the eastern side of Unley Road and fronting that road is entirely used for commercial purposes, while allotments fronting the western side of Unley Road include a mixture of commercial and residential uses. Allotments fronting Austral Terrace, between the rear of the subject land and Rugby Street, are all occupied by detached dwellings, which, for the most part, are substantial single-storey stone and brick structures, dating from the late nineteenth or early twentieth century.

Within the locality are a number of substantial retail and service trade developments, including a Mitre 10 hardware store, a Crowhurst (Solver Paints) decorator centre, and the premises of Claridge Holden, which comprise showrooms for the display and sale of new cars, a roofed used car lot, a mechanical service centre and a crash repair centre, all at or close to the northern side of the intersection of Cross Road and Unley Road. Other substantial businesses along this section of Unley Road include the drive-in Chehade dry cleaners, and a medical centre on the western side of the road, and, on the eastern side, a chiropractic consulting clinic, an antique shop and the existing service trade premises of Routley Trading Pty Ltd, the second respondent in this matter, which premises are located a short distance to the north of the subject land at 311 Unley Road.

In addition to the large Claridge Holden, Mitre 10 and Chehade premises, the locality includes a number of smaller specialised retail, service industry and medical and professional consulting practices, generally between 30m2 and 300m2 in area.

Unley Road is a significant feature of the locality, being a heavily-trafficked arterial road which carries some 27,900 vehicles per day, according to figures published by Transport SA in September 2001. Cross Road also is heavily trafficked, carrying more than 50,000 vehicles per day at its Unley Road intersection. Both roads have a four-lane carriageway.

The second respondent had lodged a number of previous applications for development on the subject land. The most recent of these, prior to the present matter, was lodged on 3 May 2001; an application for a "new building with mezzanine for use as Service Trade Premises with carpark at rear". This proposal was for the construction of a tilt-slab building of some 1,580m2 in area for the display and sale of plumbing supplies and fixtures. The decision by the Council to grant provisional development plan consent was the subject of representor appeals to this Court. In its judgment delivered on 21 November 2001 (Hall & Ors v City of Unley & Routley Judgment No [2001] SAERDC 106), the Court found that, while in land use terms service trade premises might well be an appropriate use on the subject land, the scale and appearance of the proposed building were at odds with the provisions of the Mixed Use 3 Zone and with certain other provisions of the Development Plan for Unley (City). The Court therefore determined that the appeals should be upheld and reversed the decision of the Council.

Subsequently, the subject application, for the development of service trade premises with a substantially smaller floor area was made. This was processed as a Category 3 development and representations from a number of parties, both supportive of and opposed to the proposed development, were received by the Council. This appeal was instituted by some of those persons who made representations.

The proposal entails the construction of a building for the display and sale of plumbing supplies, including bathroom fittings, such as baths, hand basins, showers, shower cabinets and taps; kitchen sinks and taps; and water heaters.

The proposed building would be single storey and would contain 117m2 of office space, some 530m2 of display area and 85m2 allocated for staff, amenities and a children's play area, giving a total floor area of some 732m2. The building height at its Unley Road frontage would be some 4.2m, rising to a maximum roof height of 7m behind. The building is intended to be of modern design and constructed using full height tilt slab concrete wall panels. The front and side elevations would include an elevated parapet, intended to assist in concealing the roof line behind. The frontages to Unley Road and Austral Terrace would incorporate large display windows and there would also be a concave verandah, some 1.8m deep, on each of these frontages and a corner cut-off at the junction of the Unley Road and Austral Terrace frontages incorporating the front entrance to the building.

The Unley Road frontage would be articulated somewhat at its northern end to allow the building to be set back behind the four retained elm trees. The building would be set back 4.5m from the Unley Road boundary of the subject land in the vicinity of the elm trees, but would extend to within 2m of that boundary south of the trees. It would be set back 1.8m from the Austral Terrace boundary. The verandah would extend to the Austral Terrace boundary and to within 200mm of the Unley Road boundary, other than in the vicinity of the aforementioned elm trees, where it would be set back approximately 2.7m from the trunks of those trees. At the rear the set back from the adjoining residential boundary of 62 Austral Terrace would vary from a minimum of 20m to a maximum of 37m.

A total of 45 car parks are proposed between the building and the rear boundary of the land. The car park would be secured by an open steel fence, set back behind landscaping, with gates which would be locked outside normal trading hours. Access to the car park would be from Austral Terrace via a 6m wide crossover, providing two-way access for customers and service vehicles. Although more extensive trading hours were approved by the Council, the trading hours envisaged by the second respondent are as follows:

7.30 a.m. to 5.30 p.m. Monday to Wednesday and Friday

Landscaping is proposed on the Unley Road frontage in a 3m wide bed which would include the retained elm trees. 1m wide beds are proposed along the eastern wall of the building, the eastern property boundary and the street frontage of the car park. Additional landscaping is proposed to divide the car park at the rear of the building and this would also prevent trade waste bins, contained within a fenced storage area, from being seen from the adjoining residential property.

Up to 8 full-time and part-time staff would be employed on the site.

The subject land is located within the Mixed Use 3 Zone as depicted on Map Un/9 in the Development Plan for the City of Unley dated 25 October 2001. The zone is of linear shape, with all allotments therein having a frontage to Unley Road. The sole objective for that zone is as follows:

"Objective 1: Accommodation of small-scale office and consulting room development of up to 250 square metres total floor area per individual building, small-scale specialty goods outlets, and residential development of up to two storeys at medium densities."

"Principle 1: Development should be primarily, small-scale offices and consulting rooms, preferably in converted dwellings, with a limited extent of small-scale specialty goods outlets, and residential development of up to two storeys at medium densities."

"Principle 2: Development involving offices, consulting rooms and specialty goods outlets, together or individually, should not exceed 250 square metres of total floor area per individual building."

"Principle 3: Development should not exceed two storeys in height."

"Principle 4: Development should result in low traffic generation and direct vehicular access to arterial roads should be limited."

"Principle 5: Development should maintain the residential scale and appearance of existing development in the zone and complement development in adjacent residential zones by:

(a) providing building set-backs from roads typical of existing residential development in the zone, with the set-back area accommodating substantial landscaping;

(b) locating car parking to the rear of buildings, or behind screen walls and landscaping, so as not to be readily visible from adjacent public roads; and

(c) be (sic) of a mass, scale, form and design which is compatible with existing residential development, and incorporate second storeys within pitched roofs."

The only kinds of conditionally-complying development within the zone are:

Kinds of non-complying development within the zone include:

'A building containing an office, consulting room or bank:

(a) in which the total floor area of the office, consulting room or bank individually or together exceeds 250 square metres; or

(b) comprising a podium which supports two or more roofed areas, each of which roofed area has the appearance of being a separate building, the total floor area of an office, consulting room or bank, individually or together, within any one of the roofed areas exceeds 250 square metres'.

'Shop or group of shops with a gross leasable floor area of greater than 250 square metres'.

'Service trade premises' are not listed as either complying or non-complying development within the zone and fall for consideration, therefore, as a consent use to be considered against the relevant provisions of the Development Plan. In addition to the Mixed Use 3 Zone provisions set out above, other general provisions of the Development Plan of particular relevance are:

"Objective 4: A proper distribution and segregation of living, working and recreational activities by the allocation of suitable areas of land for those purposes."

"Objective 5: The amenity of localities not impaired by the appearance of land, buildings and objects."

"Objective 34: A hierarchy of centres located in centre zones or areas."

"Objective 40: Retail showroom development should only be allowed outside of designated centres if it can be clearly demonstrated that it could be undesirable or impractical to locate them in the vicinity of designated centres."

"Objective 41: Retailing not consistent with facilities envisaged in a centre located and operated so as not to adversely affect any designated centre, commercial, business or residential, zones, or areas, and traffic movements on local, primary, and primary arterial roads."

"Principle 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."

"Principle 130:Development or redevelopment within centre and mixed use zones, or areas, should meet the following criteria:

(a) Their location and assigned role in the centre hierarchy of designated centres and designated centre zones, or areas.

(b) The need to integrate facilities in the zone, or area.

(c) Staging of development within the centre and the needs for any future expansion of the zone, or area, as a whole.

(d) Multiple use of facilities and sharing of utility spaces.

(e) Attractive development, with a unified design of buildings and produce [sic] a close relationship between shops in a lively setting.

(f) Materials compatible with the natural features of the site and adjacent buildings.

(g) Acceptable micro-climatic conditions and degree of exposure in designing and orienting buildings, and locating open space and car parking areas.

(h) Development and operation of facilities within a zone, or area, compatible with adjoining areas. This should be promoted through landscaping, screen walls, centre orientation, location of access ways, buffer strips and transitional use areas.

(i) Signs designed in scale with the amenity of the area, and carefully located. Illumination from signs or floodlights should not spill over to adjacent areas.

(j) Access and car parking for residential areas located within centres separate from the access and car parking areas serving the other centre facilities.

(l) Provision of retail showrooms for the trading of bulky goods on the periphery of centres, or in designated service retail zones in inner areas."

"Principle 131:Centres should have minimal adverse impact on residential areas."

"Principle 139: Centre type development located outside centre zones should of (sic) a size and type which would not hinder the development or function of any centre zone, in accordance with the objectives for centres and shops and the objectives for the appropriate zones and should conform with the access, car parking and design principles for centre zones set out below."

"Principle 141: The location and design of centres and shopping development should ensure that all sources of noise, including refrigeration and air conditioning equipment, garbage collection and car parking, do not cause excessive or disturbing noise at neighbouring properties."

"Principle 145: Development in the form of retail showrooms trading in bulky goods merchandise, should provide adequate manoeuvring and circulation areas in order to accommodate truck and trailer movements."

"Principle 146: Centre type development should make adequate provision on the site to enable the loading, unloading and manoeuvring of vehicles without the necessity to use public roads, and in a manner which results in minimal conflict between customer and service vehicles."

Of some relevance also are Unley (City) Objectives 1, 18, 24 and 42; and Principles 1-4 inclusive, 13, 14, 15, 20-27 inclusive, 135, 140, 197, 198 and 200.

The Notice of Appeal listed two grounds of appeal:

The Council erred in not characterising the proposed development as a non-complying development and therefore provisional consent was ultra vires.

Alternatively, if the proposed development is of a kind that is neither complying nor non-complying (which is denied), having regard to the circumstances, the proposed development did not warrant provisional Development Plan consent.

The proposed development was categorised by the Council as 'service trade premises'. In Schedule 1 to the Development Regulations (1993) 'service trade premises' is assigned the following meaning:

'premises used primarily for the sale, rental or display of basic plant, equipment or machinery used in agriculture or industry, boats, caravans, domestic garages, sheds, outbuildings, motor vehicles, tents, trailers, swimming pools, building materials, landscaping materials or similar bulky articles or merchandise.'

None of the expert planning witnesses argued against the description of the proposed development as 'service trade premises'. Based on the description provided of the articles and merchandise to be displayed in the proposed premises, and the 'bulky' nature of such articles and merchandise, the Court was satisfied that the classification as 'service trade premises' was appropriate.

Mr Levinson abandoned the argument that the proposed development was non-complying. The appellant's case was based on two principal arguments - firstly, that the proposal was contrary to the relevant Development Plan provisions as these were expressed in the provisions of the Council's Mixed Use 3 zone, particularly in respect of the visual scale and effect of the proposal; and secondly, that, reading the zone provisions in the context of the Development Plan as a whole, a commercial development of this scale was not consistent with the overall intent of the development plan policy on centres and the hierarchy and spatial distribution of activities, which was presumed to underlie this policy.

Mr. Levinson for the appellants referred to decisions of the Full Court of the Supreme Court - City of Mitcham v Freckmann and Ors [1999] SASC 234; (1999) 74 SASR 56, Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 182 and St Ann's College v Corporation of the City of Adelaide and Renton (1999) EDLR 432.

Mr. Levinson agreed that it was important to read the Development Plan as a whole. In his submission, the first task of the relevant authority in assessing a proposed development under S.33 of the Development Act is to determine relevant objectives and principles. Having established a checklist, the second task is to determine the overall purpose and intent of the zone and then to make a planning assessment. This was the approach identified in Adelaide Clinic (above) and acknowledged as good law in Freckmann (above).

In the Full Court's judgement in St. Ann's College, (above) Debelle J observed, at 437:

"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 .... The Plan must be considered as a whole for the purposes of determining its purpose and intent."

Mr Levinson argued that, to understand the provisions of the Mixed Use 3 Zone, it was necessary to examine the Unley (City) Development Plan as a whole. Such an examination, and the implied hierarchy and policy framework of Centre and Mixed Use Zones in particular, led to the conclusion that the clearly expressed intent of the Mixed Use 3 Zone was the accommodation of 'small scale' commercial land uses - in particular, offices and consulting rooms of up to 250m2 total floor space per individual building, as well as small-scale specialty goods outlets, together with residential development of up to two storeys at medium density. 'Service trade premises', particularly of the scale proposed, while not listed as non-complying under Principle 7 of the Mixed Use 3 Zone provisions, were more appropriately located in other zones.

Referring to the Unley (City) Structure Plan (Map Un/1[Overlay 1]) and to Maps Un/4, Un/5, Un/7 and Un/9, Mr Levinson suggested that there is a clearly discernible hierarchy, which, along Unley Road, encompasses the District Centre Zone at the apex of the hierarchy, with Specialty Goods Centre Zones adjacent to the District Centre Zone to the north and south, and further south again, the Mixed Use 3 Zone. According to Mr Levinson, it was the clear intention of the Development Plan that the intensity of commercial development should decline, the further the land was located from the District Centre. The Mixed Use 3 Zone, as the most distant zone from the District Centre, was thus to be seen as a zone in which only a low intensity of commercial activity was desired.

Mr Rumsby's evidence, based on his detailed examination of the structure of Centres and Mixed Use Zones in the Unley (City) Development Plan was strongly supportive of this reading of the purpose of the Mixed Use 3 Zone. In Appendix 2 to his Statement of Evidence, Mr Rumsby included an analysis of the various 'Centre/Business Zones' in the City of Unley which purported to indicate, amongst other things, that, within the scheme of Mixed Use Zones in Unley, a hierarchy of sorts can also be discerned. The Mixed Use 2 Zone, located on Goodwood Road, provides for 'medium-scale offices and consulting rooms of up to 450m2 total floor area per individual building, service industries, warehouses and retail showrooms which result in low traffic generation'. The Mixed Use 1 Zone, located on parts of Goodwood Road and also on King William Road, makes provision for 'Small office and consulting room development of up to 250 square metres of total floor area per individual building, with limited small scale specialty goods outlets and retail showrooms, and small entertainment facilities...'.

Objective 1 of the Specialty Goods Centre Zone provides for "The accommodation of small-scale retail specialty goods outlets, local convenience shopping facilities and neighbourhood, community, entertainment, education, religious and recreational facilities of a low traffic generating nature", while Principle 5 of the provisions of that zone indicates that "Office and consulting room development of up to 250 square metres should be located within the southern most Unley Road Specialty Goods Centre Zone', and Principle 9 includes as a non-complying development.

"A building containing an office, consulting room or bank:

(a) in which the total floor area of the office, consulting room or bank individually exceeds 450 square metres". (a) in which the total floor area of the office, consulting room or bank individually or together exceeds 450 square metres'.

Thus, while service trade premises are a consent use in the Mixed Use 1, 2 and 3 Zones and in the Specialty Goods Centre Zone, the scale of development envisaged in the Mixed Use 2 and the Specialty Goods Centre Zone, as indicated by the floor area limits referred to, appears to be greater than that desired in the Mixed Use 1 and Mixed Use 3 Zones. It was the case for the appellants that the references to a maximum total floor area of 250m2 per individual building in Objective 1 and Principle 2 of the Mixed Use 3 Zone provisions in relation to offices, consulting rooms and specialty goods outlets should be read as indicating the clear desire that other uses proceeding in the zone, including service trade premises, should be similarly limited in scale. This was also consistent with the argument that, within the overall policy framework of the Unley Development Plan, the Mixed Use 3 Zone was intended to be a zone of low commercial intensity by virtue of both its distance from the District Centre and its hierarchical relationship to other centre and mixed use zones.

Mr. McElhinney (and by adoption, Ms Blencowe), for the second respondent, also referred to the decision of the Full Court of the Supreme Court in Freckmann (above) and argued that the Court's reasons evinced no intention to 'alter or water down' what the Full Court had said in the earlier case of Adelaide Clinic Holdings (above). In Mr McElhinney's submission, Freckmann (above) dealt with a development in a particular zone, the Colonel Light Gardens Suburb Zone, of fundamental historical importance in the planning of South Australia, and had to be read in that context. Counsel were in agreement with respect to the nature of the planning task. They disagreed as to how the Development Plan should be interpreted.

Mr McElhinney submitted that the weight of authority (Freckmann, Adelaide Clinic Holdings, Hassen v DC of Murray Bridge and Onsoy (1984) 35 SASR 448, and Lanzilli Holdings Pty Ltd v Campbelltown City Council (1982) 32 SASR 81) was against a narrow reading of the Mixed Use 3 Zone provisions and, in particular, allowed the relevant authority the discretion, in reaching its decision, to have regard not only to the precise wording of the zone provisions but to other matters, including the character and amenity of the locality. It was the evidence of Mr Smith and Mr Hutchison that the hierarchy of Centre and Mixed Use Zones in the Unley Development Plan was not as clear-cut as Mr Rumsby had suggested. But in any event, Mr McElhinney argued, the locality was characterised by the existence of a number of large developments and the existence of these developments was relevant to the assessment of the subject proposal.

Mr Smith's evidence was that the Mitre 10 premises had a floor area of some 1500m2, while the Claridge premises (combined) had an area of some 3,500m2. The Chehade premises, also in the Mixed Use 3 Zone, had an area of about 800m2, the Crowhurst (Solver Paints) development, directly opposite the subject land on the southern side of Austral Terrace, had an area of 360m2, and the existing Routley premises at 311 Unley Road had an area of about 430m2. In addition, a 900m2 building used as a nursing home had stood on the subject land until recently, and there was an existing approval for a residential development on the land, having a total floor area of about 1000 square metres.

It was the argument of both Ms Blencowe, and Mr McElhinney, that the proposed use was generically suitable on the subject land within the Mixed Use 3 Zone and that the floor area limit of 250m2 for each individual building applied only to the offices, consulting rooms, specialty goods and shops specifically referred to in the Objective and Principles of the zone. The rationale in a planning sense, in support of this interpretation, it was argued, was that service trade premises of the nature proposed would generate less activity and fewer vehicle movements than, for example, offices, consulting rooms and shops, which would tend to have a higher turnover. The recent approval of a residential development on the subject land which could not be argued to be 'small scale' also lent weight, it was suggested, to the proposition that the requirement for development to be 'small scale' applied only to the specified uses, namely offices, consulting rooms and specialty goods outlets.

There was some minor disagreement amongst the expert witnesses as to the precise floor area of the building currently proposed but, at most, it would have a floor area of 732m2. The subject land is comprised in three separate certificates of title, and has a total area of 2,530m2. It could be argued, therefore, that, even if a somewhat narrow view of the zone objectives and principles were to be taken, it would be possible to accommodate this amount of floor space in three separate buildings, each of which had a floor area of 250m2 or less. On the other hand, in the opinion of the appellant's planning witness, there were likely to be qualitative differences between a development comprising 3 separate buildings or tenancies, each of up to 250m2, and the proposed development. The latter would give rise to a different visual appearance by virtue of its extensive display area and long frontages. Mr. Smith's opinion, however, was that the division of the floor space into three separate entities was not a critical factor in assessing the appropriate form of development for this site, given that the site was currently vacant, and he referred us to Council-wide Principle 14 relating to the amalgamation of sites "to improve opportunities to enhance overall appearance and the efficient functioning of operations" as providing support to a development across three titles of the nature proposed.

As noted earlier, Principle 5 of the Mixed Use 3 Zone provisions requires that:

"Development should maintain the residential scale and appearance of existing development in the zone and complement development in adjacent residential zones by:

providing building set-backs from roads typical of existing residential development in the zone, with the set-back area accommodating substantial landscaping;

locating car parking to the rear of buildings, or behind screen walls and landscaping, so as not to be readily visible from adjacent public roads; and

(c) be (sic) of a mass, scale, form and design which is compatible with existing residential development, and incorporate second storeys within pitched roofs."

Mr Rumsby's opinion was that this Principle, taken together with the other zone provisions, sought 'to maintain discrete smaller-scale buildings of single storey...and to retain the open landscape features and low intensity site coverage typically associated with traditional domestic and business building forms along this section of Unley Road. He expressed the view with regard to the proposed development that "(T)he overall building height, composition of its street elevation, the use of verandah and splayed corner entry forms, typically associated with strip shopping within the zone, are ... generally appropriate to the nature of this proposed use". He was of the opinion, though, that "(t)he largely unrelieved length of shop display and extensive glazing is atypical of business development elsewhere within this zone and at some variance with the anticipated distinctive smaller-scale commercial and domestic architectural elements".

However, Mr Hutchison observed that along a 400 metre section of Unley Road, south of Dover Street, there were only five buildings of residential scale and appearance, all but one of which had been adapted for commercial use. The more typical form of development in this part of the zone, he opined, comprises buildings with, in most respects, lesser setbacks from the street than is typical with residential development, and addressing intersections where required. In his opinion the proposed development, including its height, and its incorporation of traditional design features, such as the concave verandahs, would meet the requirements of Principle 5. Mr Smith also agreed that the proposed form of development was consistent with the form of other existing development in the zone.

Mr Hutchison and Mr Smith both concluded that the proposed development was an appropriate land use within the Mixed Use 3 Zone, having regard to the fact that the zone, and its southern end in particular, already has a number of large-scale land uses and buildings. Mr Rumsby acknowledged the existence of these developments but argued that 'there is sufficient integrity retained within the locality' to warrant the continued attempt to limit new development to the scale of traditional dwellings.

It is reasonable to assume that, in devising its policy framework for Centre and Mixed Use Zones, the City of Unley was seeking to establish some sort of hierarchy and that, as Mr Levinson, supported in evidence by Mr Rumsby, submitted, it was intended that there should be some reduction in the intensity of commercial activity as one moves south along Unley Road from the District Centre Zone. Moreover, Principle 1 of the provisions of the Mixed Use 3 Zone, with its reference to accommodating development "preferably in converted dwellings" seems indicative of a desire to promote the re-use of existing residential buildings and to discourage the amalgamation of large sites to allow large-scale developments out of character with such residential buildings.

However, it can also clearly be argued that the southern part of the Mixed Use 3 Zone no longer derives its character primarily from converted dwellings and that it is reasonable that the design of new buildings should have regard to the existing character of neighbouring, modern, commercial buildings - as the current proposal does, for example, in relating its form, height, verandahs and setbacks to those of the Crowhurst (Solver Paints) building on the opposite corner of Unley Road and Austral Terrace. Both the Crowhurst building and the subject proposal are of approximately the same height as adjoining residential development to the east along Austral Terrace.

In the case of the subject proposal, it is important to note that the opportunity to make use of converted dwellings does not exist, since the subject land is a large vacant site. In this context development can only take the form of a new, purpose-built structure. The zone provisions would allow for the construction of three buildings, each of up to 250m2, on the subject land. Having regard to all relevant provisions of the Plan, we are satisfied that an appropriately designed building of some 750m2 is suitable on the subject land.

There was no suggestion from any of the expert witnesses that the proposed development would have any significant adverse impacts on the amenity of residential dwellings within the locality. The access arrangements were generally accepted by all planning witnesses, as satisfactory, the parking provisions as generous and the impact, in Austral Terrace in particular, of increased traffic movements, minimal. We find that the proposed development, including the building, has been appropriately designed for the subject land, in the circumstances.

In the course of the hearing, Mr Levinson submitted that the evidence of the planning witness Mr Hutchison, was tainted by the latter's involvement in negotiations on behalf of the second respondent, with the Council, with respect to proposed development on the subject land in its various forms. (We were informed that there is another form of proposed development awaiting a hearing date, in this Court). In Barossa Region Residents v D C Angaston & Grosser (1996) EDCR 667, the Court commented on the potential consequences for a planning witness, of him or her having acted as an advocate for the proposal, at the stage of assessment by the relevant authority, as follows:

"While it is not for us to comment on the role of a planner advising his or her client prior to the matter coming to this Court, we would be surprised if the planner's role in preparing and advancing a statement of effect, should extend to one of advocacy. We comment thus because it seems to us that the credibility of the evidence of a professional expert in this Court might be affected by evidence that tends to show that the same professional expert, by his action prior to the matter coming to this Court, clearly acted as an advocate for his or her client's proposed development and not as an independent professional expert."

It is possible that this statement by the Court may have been the basis of the submission made by Mr Levinson. However it does not follow that merely because a planning witness was involved in discussions on his client's behalf, with the relevant authority, that his professional independence and thus his expert evidence, will be tainted: see also Alvaro v City of Charles Sturt Judgment No. [1999] SAERDC 6.

We cannot over-emphasise the need for planning experts to be zealous in guarding their professional independence and integrity when assisting a client at the stage of the submission of an application for, and assessment of, a proposed development. However, we were satisfied, on the evidence of Mr Hutchison, that although he has had a long involvement with the second respondent and particularly in the several proposals for the subject land, he has retained his professional independence and integrity. Thus, we reject the submission by Mr Levinson.

Having given careful consideration to all that was placed before us, to observations made on the view and to the relevant provisions of the Development Plan, the Court is of the view that the Council's decision to grant provisional development plan consent to the subject proposal should be upheld.

The Appeal is therefore dismissed and the decision of the Council is confirmed.

Having completed our judgment in this matter, we became aware of the judgment delivered by the Supreme Court on 6 May 2002 (City of Unley v Hall & Ors; Judgment No [2002] SASC 143), on appeal from the earlier decision of this Court in relation to another proposal by the second respondent. That earlier decision has been referred to in these reasons, as Hall & Ors v City of Unley & Routley Judgement No [2001] SAERDC 106. We have not taken the Supreme Court judgement into account in coming to our decision, but we are of the view that our approach is not inconsistent with the reasoning of the Supreme Court therein.