B T Goldsmith Planning Services v Ashfield Municipal Council

[2006] NSWLEC 578

Land and Environment Court

of New South Wales

CITATION:	B T Goldsmith Planning Services v Ashfield Municipal Council [2006] NSWLEC 578
PARTIES:	APPLICANT B T Goldsmith Planning Services RESPONDENT Ashfield Municipal Council
FILE NUMBER(S):	10177 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Heritage Demolition .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 5(a)(ii)
CASES CITED:	Manzie v Willoughby City Council [1996] NSWLEC 26; Zhang v Canterbury City Council [2001] 115 LGERA 373; Helou v Strathfield Municipal Council [2006] 144 LGERA 322; NSWLEC 66; .
DATE OF JUDGMENT:	08/17/2006
LEGAL REPRESENTATIVES:	APPICANT Ms H Irish, barrister RESPONDENT Mr S Griffiths, solicitor Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

17 August 2006

10177 of 2006 B T Goldsmith Planning Services v
Ashfield Municipal Council



JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Ashfield Municipal Council (the council) of Development Application 10.2005.305.1 for the establishment of a childcare facility at premises known as 262 and 264 Hawthorne Parade, Haberfield. The demolition of the existing dwelling house, swimming pool and tennis court at 264 Hawthorne Parade form parts of the application together with some alterations to the existing residence at 262 Hawthorne Parade.

2 262 Hawthorne Parade is presently a substantial (and substantially modified) two storey dwelling. The upper level of the dwelling is proposed to be converted into a three bedroom caretaker’s residence for the childcare centre and the lower floor area is proposed to be converted into the operational indoor areas of the childcare centre. There is no issue in the proceedings that those operational areas do not conform with the requirements of the Department of Community Services.

3 In lieu of the existing dwelling on 264 Hawthorne Parade, it is proposed that a part undercover/part open-air car parking area be provided. A separate car parking space for the persons residing in the caretaker’s residence is proposed within the boundaries of the allotment of 262 Hawthorne Parade. This parking space is separate from the car parking spaces to be provided on 264 Hawthorne Parade. A semicircular driveway utilising the existing driveway entrances from Hawthorne Parade is also proposed as part of the pick up and set down facilities for the childcare centre.

4 262 Hawthorne Parade is a rectangular allotment extending slightly further to the west than 264 Hawthorne Parade as a consequence of a boundary adjustment having been undertaken with the property to its west which fronts Tillock Street.

5 The reason for that boundary adjustment is obvious from a cursory examination of the topography of the site – there being a substantial intervening sandstone cliff line running in approximately a north-south direction somewhat to the west (and, indeed, modestly somewhat to the west) of the original subdivision line. That cliff line has imposed obvious restrictions on the utility of the portions of the yards of the Tillock Street residences which are below the cliff line. The existing subdivision pattern, however, other than the boundary adjustment at the rear of 262 Hawthorne Parade, has remained generally intact.

6 I am satisfied, as I will turn to later in these reasons, that nothing of significance arises from that adjustment other than that the sites might generally be regarded as flat. They are located within the Haberfield Conservation Area (the conservation area).

7 The sites are zoned 2(a) Residential pursuant to the zoning table in cl 10 of the Ashfield Local Environmental Plan 1985 (the LEP) and the proposed uses, both as a childcare centre and as a residence, are permitted within the zone.

8 There were four substantial reasons, as I apprehended them, outlined in the council’s case as warranting refusal of the application. They all essentially derive from the heritage nature of the Haberfield area and from heritage considerations of the proposed redevelopment.

9 During the course of the proceedings I had the assistance of a Court appointed planning expert, Mr Moody, who indicated that, from the perspective of consideration of town planning matters raised by the council and raised by residents, there were no issues that were not capable of being dealt with by minor or modest adjustments to the proposal. In those regards, a number of adjustments were proposed and were indicated to be acceptable to the applicant (indeed, with respect to the front fence issue, an agreed design condition was drafted by the two heritage experts involved in the case, Mr Moore for the council and Mr Patch for the applicant). I am satisfied that all of those relevant matters could have been dealt with by way of condition.

10 The four issues that are put by the council as warranting refusal, and supported by Mr Moore’s evidence on each of them, are:

• First, that although a childcare centre is capable of being approved as a permissible use within the zone, it is contrary to the heritage intention of the original planning for the conservation area and is, as a consequence, an inappropriate use at this location within the conservation area.

• Second, that there would be an unacceptable impact on the Tillock Street neighbours when viewing the nature of the proposed development in the rear yard of the properties due to inappropriate structures being erected, including the shade cloth structure to protect the children from sunlight and the proposed acoustic fencing treatment. In addition, Mr Moore put, as a subsidiary element, as I understood it, that the proposal would not respect the conventional subdivision pattern and would be alien in that regard.

• Third, that the demolition of the existing house at 264 Hawthorne Parade was unacceptable as it was a contributory item to the heritage values of the conservation area.

• Finally, that, if I were minded do approve the demolition of the house at 264 Hawthorne Parade, the proposed structures for and in conjunction with the car park proposed to replace it were, themselves, unacceptable in the conservation area.

11 As I indicated, the other matters of a town planning nature which also had some heritage flavours were capable of resolution (and were resolved) by agreement between the parties. These related to the front fence; skylight; privacy screening to the rear balcony of the caretaker’s residence; physical matters relating to drainage and the like.

12 I note that, during the course of the view, I pointed out that it was proposed on the plans to demolish the boundary fence with 266 Hawthorne Parade. The survey plan showed that that fence, to a considerable extent at least, was on and formed part of the common boundary and therefore was partially on the adjacent property and that there was no owner’s consent for such demolition.

13 Ms Irish, barrister for the applicant, indicated that it would be appropriate to amend the plans to erect the proposed acoustic treatment structure (some 2.4 metres high) a modest distance within the boundaries of 264 Hawthorne Parade – in response to that difficulty. I am satisfied that an amendment to the plans to permit that to occur would be an appropriate response to that issue (with the necessary and consequent landscaping adjustment to follow). That issue is in itself, therefore, capable of resolution.

14 During the course of the view, I heard informal evidence from a number of the resident objectors to the proposal. The resident objectors raised a variety of other issues in addition to adopting collectively generally those raised by the council. These issues were noise impacts; traffic impacts; impacts on property values and the fact that, in their perception, there was no demand for the facility.

15 The neighbour immediately to the north, Mrs Squadrito, also had raised, in the earlier written objections on her behalf, material from her doctor indicating that there would be health effects on her if the application were to be approved.

16 I am satisfied that, although there might well be health impacts on Mrs Squadrito, if they were to occur as a consequence of approval, they would be sufficiently idiosyncratic as to not provide a valid basis for me to refuse the application on general planning grounds.

17 The question of consolidation of the allotments had originally been proposed by the applicant but in the face of Mr Moore’s objection to alteration of the subdivision pattern from a heritage perspective, this element of the application was abandoned by the applicant but remained pressed by the council, contrary to Mr Moore’s evidence, not merely on the basis of subdivision patterns but on the basis of necessity to deal with drainage issues on an integrated basis.

18 I indicated, during the course of the hearing, that I was satisfied that there was no reason to require consolidation and that drainage matters could be dealt with by way of mutual easements. I remain of the view, after further consideration, that that would be the appropriate course to follow.

19 The LEP contains four provisions that are of particular importance in this appeal. The first, as earlier mentioned, is the list of permissible uses contained in the zoning table in cl 10.

20 The second is Pt 4 which contains the relevant heritage provisions of the LEP. The first of those – the heritage aims – are contained in cl 30, the relevant elements of which are:

(a) to retain the identity of Ashfield by conserving its environmental heritage which includes the first garden suburb of Haberfield now listed as part of the National Estate,

and

(d) to ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings as well as landscapes and streetscapes and the distinctive character that they impart to the land to which this applies.

21 There are then two other clauses which require to be dealt with as part of this appeal. The first is cl 32 which sets out the general protective controls for heritage items, heritage conservation areas and relics. The second is cl 35 which contains a number of other specific conservation matters relating solely to the conservation area.

22 In addition to the provisions that are contained in the LEP, there is a specific Development Control Plan (the DCP), adopted effective 1995, which responds specifically to the heritage values of Haberfield and to its entry, many years earlier, in the early 1980s, on the register of the National Estate following a Commission of Inquiry into its conservation area values.

23 During the course of the hearing, I discussed with Mr Griffiths, solicitor for the council, and Ms Irish the questions to be addressed by me in this appeal.

24 I put to them that, in addition to the very broad questions earlier outlined by the council as warranting refusal, it was also technically possible for me to deal with the broad issue of whether a childcare centre in the abstract would be appropriate for the site.

25 I indicated during the course of the hearing that, consistent with the comments made by Bignold J in Manzie v Willoughby City Council [1996] NSWLEC 26, if I were to find against the applicant on all other issues, it would not be appropriate for me to express some form of general view as any future application for childcare centre as, having regard to my decision on the merits of this application, doing so would necessarily involve me making speculative comments on some future application (the details of which I would not know and which would, of necessity, be significantly different from that with which I was currently dealing).

26 I turn to the matters raised by the objectors as they may be dealt with in comparatively short order.

27 With respect to noise, I had evidence from two noise experts, Mr Cooper and Mr Carter, both of whom agreed that with the provision of appropriate acoustic shielding (visually shielded by appropriate landscaping and not relying on landscaping for noise attenuation), the noise impacts on the adjacent properties at grade, that is 260 and 266 Hawthorne Parade, would be acceptable. After I raised the issue with them, a modest adjustment to the height of the masonry wall between the courtyard private open space of the caretaker’s residence and the play area within the site would achieve acoustic protection for that private open space (if I were minded to require it – as I indicated to the parties I considered would be appropriate).

28 In addition, I requested Messrs Cooper and Carter to give evidence, despite their agreement, because of the noise issues pressed on site by the Tillock Street residents and my own observation on site (also observed by Mr Griffiths and Ms Irish) that the below cliff element of the rear yard of the Tillock Street facing property immediately to the west of 264 Hawthorne Parade had what might be described as a modest private urban orchard operating on the flat land adjacent to 264 Hawthorne Parade.

29 Mr Cooper and Mr Carter agreed that the proposed shielding would not only ensure that there was no adverse impact from noise on residents of the Tillock Street properties in their rear yards above the cliff face but also that there would be no adverse impact on persons using any areas including the immediately adjacent area below the cliff line. I am, therefore, satisfied that there is no basis of noise impact upon which to refuse or contribute to the refusal of the appeal.

30 \With respect to traffic and vehicle movements, although there was anecdotal evidence given on site concerning persons doing what was described as “hooning” in the street and that there is material in the written objections concerning persons not observing the One Way movement restriction at the northern end of Hawthorne Parade (thus using it, contrary to that restriction, as a through road), the council does not press traffic matters as an issue and I thus have no expert evidence in support of the residents’ concerns.

31 From my own observation, Hawthorne Parade is a wide street; there are no visibility difficulties in traffic; and there did not appear to be any parking difficulties in the vicinity.

32 The application, as presently proposed, clearly envisages adequate, and indeed one might say generous, parking on site. I am, therefore, satisfied that there is no basis on the question of traffic raised by the objectors to refuse or contributed to the refusal of the application.

33 The residents raised the question of property values. Even if relevant, I have no evidence of it. I make two observations. First, I am satisfied that for me to have regard to what might be, if realised, impacts on property values of an otherwise permissible development within the planning scheme would be an error of law. Second, as a general proposition, fear of something occurring (even if an honestly held apprehension) is only a relevant matter for my consideration if there is some rational basis upon which I could assume that there is some reasonable probability of that fear being realised. I am not satisfied, even if it were a legitimate matter for me to consider, that that exists in the present case and I certainly have no evidence on it.

34 With respect to the question of whether or not there is demand for such a facility, that is not a matter of proper consideration for me in these proceedings. Put in the vernacular, any applicant is entitled to choose their own path to financial perdition if they so choose to do.

35 I turn to the council’s issues that were put as determinative.

36 The first of them is that despite the permissibility in the zoning table, a preschool is not acceptable at this location. The first point in favour of the application is that it is clearly permissible in the zone and throughout the zone.

37 Second, the element of the LEP upon which Mr Moore relied in his opposition to the general concept of locating preschools away from the otherwise established commercial or what one might describe as religious elements of the precinct (they being churches or buildings associated with churches such as halls), are the provisions of cl 32(5)(a) of the LEP which reads:

“When determining a development application for land within a heritage conservation areas, the council must make an assessment of:

(a) the relationship of the proposed development to the general pattern of development within the conservation area.”

38 I am satisfied that a proper reading of cl 32(5) in its entirety – that is (a) through to (e) – makes it clear that what is intended in that clause is a dealing with physical elements of a development and not what one might describe as the operational nature of the development itself. I am satisfied that there is nothing arising out of 32(5)(a) that would support the contention Mr Moore made in this regard.

39 Third, the DCP, although dealing significantly with the physical fabric of alterations, additions and replacement buildings within the zone, makes no mention of what one might describe as matters of use as opposed to matters of construction.

40 There being no appropriate provision in the Local Environmental Plan, I am satisfied that, consistent with what was said by Spigelman CJ on pp 386 and 387 in Zhang v Canterbury City Council [2001] 115 LGERA 373, using the DCP as the focal point for my consideration of this issue, the council not merely does not but cannot succeed on that matter. It may well be that, if Mr Moore’s position is, in fact, the position adopted by the council, that the council will need to revisit either cl 32 or cl 35 of the LEP or the provisions of the DCP or some combination thereof. Mr Moore's contention does not, however, provide any assistance in the present case.

41 I now turn to the question of the aggregated use of the backyard.

42 It is clear from the view that, at the present time the backyard of 264 Hawthorne Parade, in the very great portion, is alienated for the use of the residents of 262 Hawthorne Parade. The backyard of 264 Hawthorne Parade contains an in-ground swimming pool and a tennis court which are fenced off from the residence at 264 Hawthorne Parade by a brush box fence. It is clear that the backyard is now used virtually entirely on an integrated basis. Structures that are within 264 Hawthorne Parade and are fenced off and alienated to 262 Hawthorne Parade are, although common in suburban contexts, quite clearly different from much but not all of the development in the adjacent area. That is evident from the extract of the aerial photograph contained in Mr Patch’s statement of heritage impact which accompanied the development application.

43 The matter raised by Mr Moore, in this regard, was that when viewed from the Tillock Street fronting residences over the cliff line into the rear of the properties to the east, that which would be viewed was so alien to the subdivision pattern and the nature of uses in the area as to be unacceptable. There is no commentary to this effect contained, on my reading of them, in any of the residents' objections to the proposal.

44 Second, it is clear to me that, in terms of what might be viewed from the Tillock Street residences, the proposed aggregated development is likely to be a more pleasant outlook, in my assessment, than that which is currently erected at the rear of 264 Hawthorne Parade.

45 However, what satisfies me primarily that this is not a matter which should warrant refusal, or indeed contribute to refusal, is my unreserved acceptance of Mr Patch’s evidence that somebody standing at the rear of one of the Tillock Street residences is unlikely to view downward into the rear yards as a constant and regular aspect given that far wider and more attractive panoramic views are available. If there be an impact, which I doubt, of the proposed development in the rear yards, it is an acceptable one.

46 It remains, therefore, for me to address the two matters that are critically determinative of the proceedings and indeed which were those upon which the evidence of the heritage experts focused, and that is whether the demolition of 264 Hawthorne Parade is acceptable or not and whether the structures proposed to replace it are acceptable (if demolition were to be permitted).

47 At the outset, it is important to note that Mr Patch and Mr Moore agreed that with respect to the external fabric of the dwelling, there were only four changes of significance from its original presentation.

• the external likely tuck pointed brickwork had been painted;
• the fence had been demolished and was no longer in its original form;
• the windows (but not the supporting brickwork for the windows) had been altered by the removal and replacement with uncharacteristic fenestration;
• a similar fate to that of the windows had befallen the entrance doorway treatment; and
• finally, there was an alien and unsympathetic garage and roller door structure on the northern side of the property that was built somewhat in front of the building line at that point but not in front of the portico line.

48 Mr Moore and Mr Patch agreed that the paint and garage impacts were entirely reversible.

49 Mr Patch conceded that there were no structural defects that would warrant demolition of the dwelling.

50 With respect to the interior of the house, it was clear in the remaining front brick area of the house which was part of the original fabric that, with the exception of two rooms (they being the bathroom and the bedroom in the south-western corner), the ceilings had been retained in their original condition and with their original mouldings.

51 It was the agreed position of Mr Patch and Mr Moore that a deal of the interior woodworking detail had been retained although some of the doors may have been re-hung.

52 The ceiling in the bathroom had obviously been replaced at some earlier stage and, given my observation of its condition, it is likely, if the building is to remain, it would need to be replaced again in the near future.

53 Mr Patch expressed a concern that, due to the practice of oregon framing of roof areas, there was some element of distortion in the roof structure but that that was capable of rectification.

54 There is a new lean-to style brick structure at the rear which may or may not have been erected post the 1986 heritage assessment of the building as part of the broader assessment of the area.

55 Mr Patch agreed that, if this dwelling had remained unchanged – that is if all four of the exterior elements had remained unchanged, it would have been a contributory item within the precinct but that its contribution was only minor and that in any event, even if that were to have been the case, it would not warrant preservation. Mr Moore took the opposite view.

56 With respect to the fenestration and the front door, Mr Patch considered that it was not appropriate to contemplate reversal and that to do so would be adopting a position contrary to the Burra Charter and consistent with what he regarded as a theme park or facsimile approach to such buildings.

57 Mr Moore, on the other hand, put the view that it would be appropriate and possible to return those elements of the building to something as reasonably likely to be reflective of what was in the original and that it was appropriate to preserve the opportunity for that to occur and that that was consistent with what was happening elsewhere in the conservation area.

58 With respect to the fence, they both agreed that that which was there now was not radically out of character with the original although it was of marginally different brick detailing and piering.

59 They took the same differing positions with respect to changing of the fence as they had taken with respect to the fenestration and the front door.

60 I earlier noted that, consistent with the decision of the Court of Appeal in Zhang, I am obliged to take the DCP for the Haberfield Conservation Area as the starting or focal point for my consideration of this application.

61 Mr Patch acknowledged in the witness box, I recall him specifically as saying, the whole document is premised on everything being conserved. I consider that to be an accurate reflection of what is proposed by the DCP.

62 I am also satisfied that the building in its present form is a contributory item although to a minor extent. I do this on the basis off my acceptance of the agreed position with the internal and external fabric of the dwelling – despite the changes to it.

63 I am satisfied that it can make a greater contribution were the two entirely reversible elements to be reversed even if there were no attention given to the windows or the fence.

64 Finally, I am satisfied that if the windows and the fence were attended to, an even greater contribution to the heritage conservation area would be made.

65 That brings me to the question of whether, in light of those determinations, it should be permitted to be demolished.

66 I made a note that Mr Patch had, I thought, conceded that if I held it were a contributory item it ought be preserved. However, as that recollection was not shared by those at the bar table, I do not take my recollection of that opinion into account and simply proceed to determine the matter on the facts and circumstances of my own assessment of what is the appropriate course to follow.

67 I do not consider that the planning principles set out in Helou v Strathfield Municipal Council [2006] 144 LGERA 322; NSWLEC 66 at par 46 provide significant assistance to me in this process. The reason for that is that, in that case, not only was the property identified as a contributory item, there was also a definition of what comprised a contributory item.

68 I, therefore, turn to deal with this matter from a more broader approach of the facts and circumstances of the Haberfield Conservation area and the property itself.

69 Ms Irish put to me the propositions that:

• the dwelling is on the edge of an estate;
• this estate was not part of the original Stanton Estates which formed the foundation of the Haberfield garden suburb and the garden suburb movement that sprang from it;
• the dwelling was in a substantially altered and now largely alien streetscape; and
• the contribution that the dwelling made was not a major one.

70 Mr Patch acknowledged that Haberfield is a very significant conservation area. That, I am satisfied, is established from the preamble material set out in the DCP.

71 Essentially, what the applicant is seeking, in these proceedings, is the making of an economic choice. I am satisfied that it is not an economic choice that forces me to have regard to the provisions of s 5(a)(ii) of the Act.

72 I am satisfied, however, that if I were to make that choice in favour of the applicant, it would be entirely antithetical to the provisions of the DCP and the aspirations that the council has had through the adoption of that DCP and the pursuit of the detailed development controls for additions and alterations contained in it.

73 I am satisfied, because I have concluded, as a matter of fact, that the item is both a contributory item and one capable of becoming a more contributory item, that it is not appropriate to permit it to be demolished. However, if I be wrong on this point, I also turn to consider the acceptability of the proposed replacement structures.

74 Mr Patch said the replacement structures are not contrary to his earlier exhortation that one should not permit theme park or facsimile development but that they are consistent with the rhythm of the roofscapes in the area.

75 Mr Moore’s evidence was that the replacement structures are an effective boundary to boundary redevelopment when read in conjunction with the existing development at 262 Hawthorne Parade. The word he used, as I have noted them, that the site would be viewed from the street as being a single compound.

76 Mr Moody said, and I accept, that there is no non-heritage streetscape impact, or, if so, it is so minor as not to warrant consideration.

77 However, consideration of the eastern street elevation shown in sheet 2 of 3 (amongst the bundle of curiously a-continuously numbered plans) makes it clear, reading from south to north, that there will be a substantial dwelling linked to a carport linked by a walkway linked to the entrance structure to the proposed car park (with a pyramidal tiled unglazed terracotta tiled roof) linked to a skillion roof extending to the north supported by a number of piers and beams below with this skillion roof facing Hawthorne Parade.

78 Utilising the existing driveway entrances would be a U-shaped driveway with what would now be, the heritage experts agree, an appropriate fencing to the street.

79 The skillion roof to the north of the pyramidal tiled roof structure would be a metal roof.

80 I am satisfied that this structure in itself, even though not a dwelling, is inconsistent with a number of the specific controls set out in the DCP. They relate to the nature of the driveway – that is it being a solid paved structure rather than the pair of matching straight-ahead tracks with gravel or grass between – clearly envisaged as being desirable and appropriate in the DCP; a 6 m wide driveway aperture instead of that for a single vehicle; a skillion roof to the north as opposed to the traditional rhythm of the roof pattern which would have such extensions to the rear rather than to the side and thus addressing the street.

81 I do not accept Mr Moore’s observation that the location of the pyramid roof at one side of the allotment would be so alien and out of character with the placement of such structures on allotments as to warrant refusal.

82 However, I am satisfied that the overall linked nature of the structure proposed in itself is so alien that, even if demolition of the dwelling at 264 Hawthorne Parade were permitted (contrary to the position that I have otherwise reached), the replacement structure would in itself be unacceptable. Whether or not there is a rhythm to the roof, as Mr Patch says, the perception would be as a single continuous compound – despite the change in fence style from 264 Hawthorne Parade to 262 Hawthorne Parade.

83 I am, therefore, of the view that, in the context of a heritage streetscape, the replacement element would be unacceptable.

84 The orders of the Court, therefore, are:

1. The appeal is dismissed;
2. Development application 10.2005.305.1 for a childcare centre (with off street parking) for forty children at 262 and 264 Hawthorne Parade, Haberfield, is determined by the refusal of development consent;
3. The exhibits are returned.

Tim Moore

Commissioner of the Court