Armstrong v Hunters Hill C

[2005] NSWLEC 229

Land and Environment Court

of New South Wales

CITATION:

Armstrong v Hunters Hill C [2005] NSWLEC 229

PARTIES:

APPLICANT
Christiana Armstrong

RESPONDENT
Hunters Hill Council

FILE NUMBER(S):

11011 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- s 97 for a deemed refusal for alterations and additions and a double garage - character - heritage - streetscape - setback - car parking - privacy.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hunters Hill Local Environemental Plan
Hunters HIll Development Control Plan

DATES OF HEARING:

22/04/2005

EX TEMPORE JUDGMENT DATE:

04/22/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms H. Irish, barrister

RESPONDENT
Mr J. Cole, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

22 April 2005

11011 of 2004 Christiana Armstrong v Hunters Hill Council

JUDGMENT

1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act, 1979, against Hunters Hill Council’s deemed refusal of a development application for the property known as 3 Crescent Street, Hunters Hill. The application is for alterations and additions to the dwelling and the provision of a double garage in the bank adjoining the footpath of Crescent Street. The site also has a rear boundary with Futuna Street, Hunters Hill.

2 By way of description the subject dwelling together with the adjoining dwelling were built in the same Federation cottage style and are listed as heritage items under the Hunters Hill LEP schedule 6. The subject dwelling also has a heritage item with its large curtilage adjoining its other side boundary and this is known as St Peters Chanel Church. The key aspects of the Federation style of the house are good examples that demonstrate this period of architecture and building. Together with the adjoining dwelling built in the same era the subject site makes a positive contribution to the conservation area.

3 The Hunters Hill Local Environmental Plan zones the subject site 2A(2) and the LEP contains a number of aims and objectives that are relevant to these proceedings. As I stated the site is within a conservation area and it is also within a Foreshore Scenic Protection Area. The 2A(2) zone allows for the development of the building in terms of alterations and additions to a heritage item with the consent of the council. The LEP contains a number of standard heritage provisions, which apply to the subject development application, and also the provisions relating to the item or the dwelling house being in the vicinity of another heritage item are also relevant to my assessment.

4 The aims and objectives of the LEP of relevance to these proceedings include:

“(a) conserving the environmental heritage significance, the foreshore and riverscape townscape quality and tree covered environment of the municipality through regulation of the use and development of lands and buildings;
(b) retaining specific evidence of the thematic development of the environmental heritage through conservation of items;
(c) integrating heritage conservation into the planning and development processes;
(d) ensuring that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of the items and their settings as well as streetscapes and landscapes and the distinctive character that they impart to the land to which this plan applies.”

5 By way of background these proceedings commenced on site, as an on-site hearing on 22 December 2004. At that time it was proposed to provide for additional accommodation for the dwelling in an upper floor addition, and at that time it was also proposed that there be the demolition of the garage at the rear of the property with access from Futuna Street and the provision of a double garage accessed from Crescent Street.

6 At the time of the on-site hearing the Court heard evidence from: the Court Appointed Expert in heritage, Mr Steven Davies; Mr Bryan McDonald a consultant town planner/heritage architect for the respondent; and Mr Bruce Goldsmith, consultant town planner for the applicant.

7 At the time of the on-site hearing the Court indicated that the proposal to change the roof form and provide for an upper storey extension was not a sympathetic or appropriate resolution to providing additional accommodation for the dwelling.

8 The Court also indicated at the on-site hearing that it considered that the provision of the garage from Crescent Street was appropriate and the Court considered that whilst it would have dismissed the plans before it at the time it was appropriate that the matter be adjourned to allow for the experts to confer and brief the architect to formulate a more appropriate and sympathetic application in terms of a pavilion style for the addition to the dwelling house itself. While the Court did not object in principle to the garage at the street with access from Crescent Street it also considered that there needed to be details resolved with respect to the double garage.

9 It is noted that the dwelling house, which is one of a pair has a garage with access from Crescent Street although this is on the corner of the laneway and the configuration of the site is somewhat different. It is also noted that the stone retaining wall that was built at approximately the same time as the cottages is common to both properties so it provides a sense of unity in terms of the reading of the pair of cottages and adds to the streetscape and the conservation area. Where the subject stone wall finishes, adjoining the church property it is noted that the church property is steeper, as the road descends more steeply at this point and it has a natural embankment with large substantial trees.

10 It is important to understand the context in which I am considering this development application in the streetscape The council referred the Court to the Development Control Plan, which must be a focal point and central to my consideration of this development application. However, in my assessment I must also be aware of the context in which this particular property sits in the streetscape.

11 I will preface my judgment by saying I do not consider that this is a precedent and I have decided that it is appropriate to allow the development application that has been amended because of the special circumstances in terms of the site characteristics for this dwelling and I will give my reasons as I go through the Development Control Plan.

12 It cannot be seen as a precedent in that there are special circumstances and the fact that in terms of the streetscape it will not invoke further applications such that one would find a multiplicity of garage doors in the streetscape. The opening into the stone wall has been designed, as agreed by the Court Appointed Heritage Expert, as one that will be as unobtrusive as possible. That is not to say that there will not be an opening in the stone wall. Nonetheless having regard to the slope in the topography, having regard to the garden on top of the garage and having regard to its relationship towards the boundary of the subject dwelling at a lower level it could not be seen to dominate the streetscape or to overwhelm the subject dwelling, which is of heritage significance. The stone walls are an important characteristic of many parts of Hunters Hill and provide an added ambience to the streetscapes which are generally well vegetated. The stone wall is lower for the adjoining property, that is the other Federation house, and the topography at this point where the garage opening is proposed, as I stated, is steeper and the height of the stone wall in the location of the proposed garage will not be higher than the ground above and in fact it requires an additional 0.9 of a metre of additional sandstone above the lintel of the garage. I am satisfied that it will not be obtrusive in the streetscape and that it does meet the intent of the Development Control Plan.

13 The plan that I now have before me which is in Exhibit “J” has also been the subject of a joint report of both Mr Davies and Mr McDonald and they are of the opinion that the resolution pavilion style addition to provide additional accommodation is appropriate for this dwelling. It has the advantage of retaining the same roofline for the front of the dwelling as the adjoining property. The roofs of the two dwellings are important elements when read in the streetscape and from the surrounding area and should not be interfered with which is why the pavilion is clearly the more acceptable resolution to providing the accommodation required.

14 The subject site does have the potential for additional floor space and the art is in how this is provided without interfering with the heritage significance of the dwelling. In this regard, I am satisfied in terms of council’s LEP provisions that the pavilion extension is one that is sympathetic and has regard to the building itself in terms of its heritage value as well as the adjoining heritage item and when it is seen from the grounds of the church.

15 The expert’s comments on the amended plans can be summarized as follows. The points of agreement between Mr McDonald and Mr Davies are that they are satisfied the addition of the altered roof space will not physically or visually impact on the important tiled roof form of the cottage and will allow the view of the two cottages, Nos 1 and 3 Crescent Street and from the grounds of the church to be retained as. The addition will obscure views of the cottage roofs from points in Futuna Street, however, the experts accept this as a reasonable compromise. Mr Davies and Mr McDonald also agree that the reduction of the wall height by 400 mm and the relocation of the timber picket fence behind the planting will reduce the impact on the streetscape and the setting for the cottages compared with the previous design.

16 Points of disagreement. Mr McDonald is still of the opinion that despite the reduction in the bulk. The garage would still constitute a radical change to the rustic character of the existing low stone wall that contributes to an informal streetscape and would produce a structure uncharacteristic of the conservation area in this locality. I will say at this point it is not a low stone wall but it is of a greater height at this point in the streetscape than the garage to the point where landscaping above the garage can be provided to a reasonable depth. It is also noted that the stone wall in front of No 1 has been restored and in accordance with Mr Davies it is not what he would call a sympathetic restoration or sympathetic introduction of the gate.

17 In response to the sketches Mr McDonald suggested that the architect, notwithstanding his basic objection to any form of garage, that a single garage would create less impact and if a second car space is considered essential it might be located off Futuna Street as a paved area. Mr Davies maintains his view that the double garage is permissible and satisfactory subject to conditions of consent. He considers that the garage has been appropriately designed in terms of the amendments now before the Court and this has improved the appearance of the garage with respect to the setback of the entrance and its relationship with the retaining wall, planting, ground levels and fencing.

18 The council’s Development Control Plan No 15 was effective from March 2000. This contains a number of provisions for residential development in the Hunters Hill area. The purpose of the DCP is to: encourage development that performs well as a good neighbour; respects the character of the heritage of its area; and respects the amenity of its neighbours. It is also noted in the preliminary part of the plan, it allows council to exercise discretion in applying its planning controls where council is sure that the resultant development will better achieve those objectives and that the onus lies on the applicant in that regard where there are non compliances and to have regard to individual circumstances.

19 It is important to note that garden area is defined in the LEP as “an area within an allotment which has not been built upon” and in terms of garden area the subject development application as shown in the amended plans Exhibit “J” provides for the 50% landscaped area required in the Development Control Plan. If the garage as proposed by Mr McDonald in Exhibit “9” was to be accommodated on the site it would take up some 46 sq m of a site that is 469 sq m so slightly less than 10% and there would therefore be a non-compliance with the garden area requirement of nearly 10% or some 9% plus. Mr McDonald said he would support a SEPP1 objection to reduce the garden area. I also note the double garage accommodation that he suggested would in fact be equivalent to a stacked parking arrangement because of the limited restricted access from Futuna Street not allowing double car access. I acknowledge the pavilion in the rear of the property takes up some additional space of the garden area but on balance this is acceptable to provide additional living space and not change the roofline of this heritage item.

20 The provisions of the Development Control Plan with respect to the objectives for overall development is that the development should be compatible with the landscape character of the area and development when viewed from the street should be compatible with the scale, et-cetera, of other development in the immediate vicinity. The objectives of the garden area are: to conserve the character of the area in terms of gardens; to retain, protect, augment the tree covered environment; to ensure that gardens are useful, accessible and have adequate sunlight and privacy; to ensure new buildings respect rather than alter the existing steep sandstone topography; and to the existing drainage system.

21 The character in my opinion is maintained by the subject development application. The tree cover or the ability to provide garden areas is enhanced by the proposed development application. And whilst there is an opening into the sandstone wall in my assessment, and with the benefit of the advice of the court appointed expert, I consider it is not antipathetic to the heritage provisions or to the reference to s and garages within the front area.

22 The car parking requirements of the DCP are to: provide for two spaces for a dwelling of this size. The objectives are: “to provide sufficient off street parking for both residents and visitors; to provide safety for vehicles and pedestrians both within and outside the site; to ensure vehicular access integrates with the development and overall site landscaping.” In this regard the proposed garage in the front to allow a garden over or above it in my assessment does provide for the objectives to be met. The garages and carports s 8 refers to the need or the purpose to maintain quality of the townscape and tree covered environment of the municipality. The garage proposed in the front will certainly allow for this in a far more effective manner than placing a garage structure at the rear of the subject site. The DCP also states that “part of the character comes from the relationship between garden spaces, buildings and fences which together create high quality townscape and garages and carports where required should not detract from the townscape”. I am satisfied that the garage at the front will not be antipathetic or inconsistent.

23 The impact on the streetscape. The DCP states in recent years “the construction of garages has had an increasing impact on the streetscape especially where the structure is close to the street or visible from public places” and in this regard it states that “large structures have a detrimental impact on the townscape where they obscure the house or houses behind, many of which are fine examples of domestic architecture of their time”. In my assessment the garage clearly does not obscure the dwelling house and the domestic architecture of this Federation house will be retained by the garage at the front in the stone wall. The second point in the DCP as to why structures can be detrimental is that “they compete with traditional streetscape elements such as leafy gardens, stone walls, hedges, brick and timber fences, contributing the special character”. In my assessment the front garage will not impact unreasonably on the streetscape or detract from the vegetated setting. As I stated the natural bank to the church grounds contains significant vegetation. While the stone wall will have an opening where it currently does not, in my assessment this is an appropriate resolution for parking on the subject site and it not adversely impact on the streetscape.

24 The other provision of the DCP is that garages introduce horizontal shapes into the streetscape such as wide shutter doors, et cetera, which are out of character with the existing development. The proposed garage is provided in a location on the subject site in the bank of the streetscape, which will not unreasonably detract from the house. The house will be the element that is clearly read in the streetscape. The DCP also provides for design guidelines saying that first consider whether it is necessary for parking, however in my assessment and clearly for modern day needs where it does not unreasonably detract from the heritage significance of the item car parking should be accommodated where it is appropriate.

25 In my assessment I must have regard to the loss of the site area for garden, outdoor recreation and child’s play areas. By siting the garage in the rear of the subject property does not achieve this. The DCP also states that on-site parking is best located at the rear of the property, however, that clearly conflicts with the point about the loss of garden area in the circumstances of this case. I also note, which was pointed out on behalf of the applicant, that with the church adjoining the subject site there are difficulties in the narrow street known as Futuna Street and that the configuration of the site does not provide a sufficient width to provide clear access to a double garage. I am of the view that for this site it is an inconvenient way to provide the parking at the rear, which would also take away from the garden area of the subject dwelling.

26 If essential the DCP states that “parking can only be located within the front boundary setback due to the exceptional circumstances of the site and council would prefer a paved standing area”. In this situation the garages in my assessment do not interfere in terms of the streetscape and it is not at the same level as the dwelling house therefore it has minimal impact. The DCP also states that” to design garages and carports you must avoid blocking views of the building already on the site and avoid blocking views between buildings”. Clearly the nature of the proposed garage at the street level will not be conflicting with these objectives. The design principles are that garages and carports are utilitarian structures. The proposed garage is designed to be subservient to the scale, form, materials, et cetera, of the house. Clearly the garage in the stone wall will achieve this design principle. The DCP states that “batteries of garage doors or very wide doors visible from the street are destructive to the townscape and the further proliferation of such structures will not be viewed favourably by the council”. Once again the proposal does not offend this provision.

27 In my assessment the garaging at Crescent Street is a discreet and appropriate resolution to still provide for a garden area and useable open space for the subject dwelling. It still allows for landscaping on top of the garage wall structure and it will fit into the streetscape and therefore the approval of this garage should not be seen as a precedent.

28 For stone walls the DCP includes comments: that stone walls are best conserved with a minimum of change or interference, it provides recommendations for the refurbishment of such walls; and new stone walls or fences should not be provided. I am satisfied that given the topography and the stone wall and having regard to the stone wall being retained in terms of its relationship with the adjoining identical dwelling house it is appropriate nonetheless to still provide for the garage opening in the stone wall in a sympathetic manner which has now been proposed in the final plans.

29 Concerning the pavilion at the rear it was agreed as mentioned earlier, that this is an appropriate resolution for the additional accommodation to the dwelling house.

30 I have given the Development Control Plan central consideration in my assessment of the development application and it is most important that one has regard to a holistic reading of what the DCP is seeking to achieve. I am also most conscious of the fact that this is a heritage item in a conservation area and it is important that heritage be carefully considered. At the same time I do not consider that the provision of the garage at the street in the circumstances of this case would detract from the heritage significance in a streetscape sense or from a heritage perspective in terms of the heritage items. The proposal will be a good neighbour. The impact of the garage at the street level on Crescent Street does not impact on adjoining properties. It respects the character of the heritage area and it respects the amenity of its neighbours, which are clear purposes of the DCP.

31 The conditions are as generally agreed to between the parties. There were two that were in contention. That is condition 1, that is the work set out in the plans and specifications approved under this consent once commenced is amended to be completed within twelve months with respect to the garage upon its commencement. There are to be no time constraints or restrictions with respect to the pavilion building.

32 Condition 4 is deleted. The council pressed a two year approval. In my assessment I accept Ms Irish’s submission that no reason has been advanced as to why the five years as provided for in the Environmental Planning and Assessment Act 1979, should not be adhered to in the circumstances of this case. Clearly it is important to provide applicants with the ability to undertake or to act on consents as their personal circumstances permit and after one has gone through an exhaustive assessment process such as this development application it would be inappropriate to provide a two year consent.

33 The other conditions that were agreed to between the parties relate to the issues of the detailing for the front garage and the applicant does not object to these conditions, which will ensure an appropriate sympathetic addition to the streetscape. The other conditions agreed to were that the kerb at the rear in Futuna Street is to be reinstated on the completion of the development to the rear. The other conditions are agreed to.

34 Costs. The Court adjourned the matter at the on-site hearing to allow the applicant the opportunity to submit amended plans and the Court raised with the parties that the issue of the respondent’s costs should be considered before the matter resumed for hearing in terms of efficiency.

35 The applicant considers that the garage has still been an outstanding issue whereas it need not have been elevated to this point today as the Court gave its preliminary views at the on-site hearing that the garage at Crescent Street was appropriate. At the same time, I do note the advice of the experts and that the conferencing has facilitated an appropriate addition to this heritage item to evolve by way of the pavilion at the rear and for details of the garage to be addressed and resolved. I note the council would have contested the application in terms of the garage, which is why I dealt with that matter first, and therefore it would not have been a matter that council would have approved even though it is a deemed refusal, it would have still contested this matter in Court.

36 Having considered costs I am of the view that the applicant has a development consent today without the need to submit a new development application to council. And in my assessment I think the process has allowed for a not only a good resolution of the issues but a development one that will be most liveable. I also consider that it was not just a matter of the applicant going back to the council with an application for the additional accommodation to the dwelling and where I was prepared to say, “Yes the garage is okay to approve but the rest is not” as I required further details on the garage as well.

37 In December on-site I made it clear that the application was one that I would have refused but I gave the applicant the opportunity to submit an amended plan.

38 I do not consider that the applicant should have to pay for costs thrown away before the hearing of 22 December, however, I have concluded on balance that it is appropriate in the circumstances of this case for the applicant to pay the costs of Mr Davies and Mr McDonald as well as the legal costs in terms of those that have been identified by Mr Cole today. So in effect the applicant is to pay $1200 for Mr Davies, $3000 for Mr McDonald and $4000 for the legal fees in the matter. I will make this recommendation to the Chief Judge in terms of seeking his concurrence to the awarding of the costs as I have just outlined and the parties have 14 days if they wish to make any submissions to the Chief Judge as to the above costs.

39 On the basis of my assessment the orders of the Court are:

1. The appeal in respect of the property known as 3 Crescent Street Hunters Hill is upheld.

2. The development application submitted to Hunters Hill Council, and as amended and shown in exhibit J, is approved subject to the conditions contained in annexure A.

3. The orders with respect to costs are that the applicant pay the council’s cost to the amount of $8200. And I have identified those costs for the amended plans as those costs the council has incurred from the adjournment from 22 December 2004 to today for the amended plans.

_________________________

J S Murrell

Commissioner of the Court

ljr

IRISH: Commissioner can I make one comment. $1200 is the court appointed expert’s costs which taken literally aren’t the council’s costs so I wonder if it might be wise to reword your order number 1 to the effect that $7000 are payable to the council and $1200 payable to the court appointed expert.

COMMISSIONER: Thank you for pointing that out.
So the $1200 for Mr Stephen Davies’ costs to be to Mr Stephen Davies, the Court appointed expert, and that $7000 be in terms of the council’s costs.

(This is not part of the judgment but it still needs to be recorded.) In terms of the formal orders of the Court I can do it one of two ways. I can wait until the fourteen days elapses and if there are no submissions then it can be referred to the Chief Judge and then the orders can be issued together. Alternatively orders can be issued by the Court, the first order would say costs are reserved and another order is issued following the final determination of costs.

IRISH: Can I just get some instructions on that? Yes, we’ll take one publication of the complete orders after the period has elapsed thank you Commissioner.

COMMISSIONER: With respect to the conditions if they could be e-mailed to the Court. I do have the hard copy in exhibit 10 but that wouldn’t be inclusive of the conditions in exhibit 8 as well so a complete set of conditions should be e-mailed to the Court and then I will finalise it accordingly. I just wanted to mention this because it does delay the orders going out. I will order a transcript now so that then I can then refer the costs matter to the Chief Judge for his concurrence and then the orders can be sent out.

The final order of the Court is that the exhibits are returned with the exception of 8, 10, J and K.

IRISH: Thank you very much Commissioner.

BRACKS: Thank you Commissioner.

COMMISSIONER: The Court is adjourned.