Baker Kavanagh Architects v Waverley Council
[2007] NSWLEC 195
•26 March 2007
Land and Environment Court
of New South Wales
CITATION: Baker Kavanagh Architects v Waverley Council [2007] NSWLEC 195 PARTIES: APPLICANT
RESPONDENT
Baker Kavanagh Architects
Waverley CouncilFILE NUMBER(S): 10025 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- conversion of an existing heritage listed church hall into two units and construction of two terraces and associated parking. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996DATES OF HEARING: 23/03/2007 and 26/03/2007 EX TEMPORE JUDGMENT DATE: 26 March 2007 LEGAL REPRESENTATIVES: APPLICANT
Ms J. Reid, solicitor
of Pike Pike and FenwickRESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10025 of 2007 Baker Kavanagh Architects v Waverley Council26 March 2007
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 On 11 April 2003, Development Application No. 388/2005 was approved by the Waverley Council. The site, which comprises 67-69 Denison Street, Bondi Junction has frontages of about 12 m to Mill Hill Road and Denison Street and a frontage of about 60 m to Ebley Street. The consent is for the conversion of the existing heritage listed church building on the site into two dwellings (Lots 3 and 4) and the construction of two new terrace style dwellings (Lots 1 and 2) separated from the church building by a central car parking area. The driveway off Ebley Street provides access to the four car parking spaces.
2 The development is now under way and is nearing completion. Condition 2(a) of the consent requires that the proposal be amended as follows:
- The land subdivision proposed is not approved. A separate application for the strata subdivision of the development is required.
3 The applicant now seeks under s 96 of the Environmental Planning and Assessment Act 1979 the deletion of that condition, facilitating the creation of a Torrens title lot for each of the four dwellings within the development.
4 There are two aspects of the plan of subdivision of particular relevance to this appeal. It is proposed that Lot 3 comprise two separate parts with the larger part comprising one of the dwellings within the church building, the other comprising a car parking space. The two parts of Lot 3 are separated by Lot 4 which is occupied by the second dwelling within the church building.
5 The driveway to the car parking area is shown on the proposed plan of subdivision as a right of carriageway and easement over the rear of lots one and two, being the servient tenement for the car spaces associated with the two dwellings in the church building.
6 The s 96 application was refused by the council for reasons essentially involving:
- The proposal does not comply with the relevant objectives of the adjoining residential zone and is inconsistent with the adjoining subdivision pattern including the alienation of part Lot 3 and the resulting irregular allotment pattern,
- The inappropriate association between the terraces (new dwellings) and the church and the impact on its heritage significance especially as a consistent maintenance approach would be difficult.
- The subdivision would not be in the public interest and would set an undesirable precedent.
7 The appeal is against this refusal.
8 The Court was assisted by the evidence of Mr W Gawne, a town planner for the respondent and Mr D O’Toole, a town planner and Mr R Staas, a heritage architect for the applicant.
9 The respondent’s amended Statement of Issues in essence raises the following issues. The proposed subdivision:
- would result in an undesirable subdivision pattern given the context of the site and the predominant surrounding subdivision pattern,
- would result in the alienation of part of Lot 3 which is inconsistent with the predominant subdivision pattern,
- would sever the link between the terraces (new dwellings) and the church building pursuant to cl 50 of Waverley Local Environmental Plan 1996,
- will result in adverse impacts on the heritage significance of the former church.
10 Having considered the evidence and the submissions, I have decided that there are three issues for me to determine:
- 1 Whether the Torrens Title subdivision would be unsatisfactory in terms of the use and maintenance of the common driveway.
2 Whether the separation of Lot 3 into two disconnected parts would result in an undesirable subdivision pattern given the predominant surrounding subdivision pattern.
3 Whether the Torrens Title subdivision of the development would ensure the proper maintenance of the former church building which is a heritage item, and if not, whether strata subdivision would achieve this.
11 In relation to the question of the maintenance of the driveway there seems to be no significant difference between the two subdivision arrangements. If there were to be a strata subdivision the body corporate would be responsible for its maintenance whereas with a Torrens Title subdivision as proposed, the owners of Lots 1 and 2 would be responsible.
12 Under a strata scheme, the sharing of responsibility and the cost of this maintenance could be effected by a body corporate involving the four properties that share the driveway. With a Torrens Title arrangement, maintenance would be the responsibility of the owners of proposed Lots 1 and 2 on the basis of the obligations resulting from the easements themselves. I also note, in this regard that the applicant has agreed to the incorporation of a specific provision in the easements identifying these maintenance obligations.
13 The only real difference between the two alternatives is that the Torrens arrangement involves a sharing of costs between two owners whereas the strata arrangement would share the cost between four owners. In my opinion, this is a matter for the applicant and prospective purchasers will be made aware of their obligations. It is not determinative of the subdivision type question.
14 Leaving aside for the moment that part of Lot 3 that comprises the car parking space, it is plain that taking into account the existing surrounding subdivision pattern that the proposed subdivision would not be inappropriate. However, Mr Gawne was concerned at the isolation of the car space lot which has no street frontage and would be uncharacteristic in the area.
15 Mr O’Toole was not concerned about the subdivision pattern, being more concerned about the operation or mechanics of the subdivision, which he believed would function appropriately. In this regard, I agree that not only would the car space lot be uncharacteristic of the area, it could in the long term cause unnecessary development complications. On this basis, I find the proposed Torrens Title subdivision to be unsatisfactory.
16 Having reached these conclusions, I would otherwise have refused the application but during the hearing the applicant did not reject out of hand suggestions that an alternate subdivision scheme might be possible. This alternate scheme involved a three lot Torrens Title subdivision comprising Lots 1 and 2 as proposed with Lots 3 and 4 becoming a new Lot 3 that would be strata subdivided on the basis of the two proposed dwellings in the church building.
17 The respondent council did not support such a subdivision, continuing to contend that a strata subdivision of the four dwellings would be the best outcome, which would produce considerable benefits. Such benefits include the sharing of costs for the long term maintenance of what would become the common property associated with the church and the driveway between four owners rather than two.
18 There was no dispute between the experts that the long-term maintenance of the church building being a heritage item is important. Indeed, the applicant proposes as part of a Torrens Title subdivision, conditions comprising a public positive covenant including a cyclical management plan to be prepared by a heritage consultant.
19 In my opinion, such conditions would be appropriate irrespective of whether a Torrens Title subdivision or a strata subdivision is involved, hence the question that needs to be answered is which of these schemes would better serve the heritage significance of the church building.
20 Mr O’Toole was of the opinion that the Torrens Title subdivision would operate in a satisfactory manner as long as the owners were aware of their legal obligations. Mr Staas had a similar opinion. Mr Gawne did not agree because taking into account the heritage significance of the church building, a consistent management approach from a single unity, i.e. a body corporate, would be a better arrangement in the long term. In this regard, I believe that Mr Gawne is correct although I do not agree with him that it is necessary to share the cost of maintenance over the four dwellings.
21 The heritage item is undergoing the process of conversion into two separate dwellings and its heritage significance will, in my opinion, be best conserved by an integrated management scheme taking into account that its conservation needs to be effected holistically. I remain concerned that if the church building were to be divided into two parts by a Torrens title subdivision and notwithstanding the applicant’s public positive covenant, any necessary future works could be carried out separately and not necessarily in the best interests of the building as a whole.
22 In my view, this is less likely to occur with a strata scheme comprising the church building. Again, like the driveway, the sharing of costs for the maintenance of the church building is a matter for the applicant and prospective purchasers will take into account these responsibilities, including those associated with strata management when deciding whether or not to purchase these dwellings.
23 In all of the circumstances, I have decided that the Torrens Title subdivision scheme as proposed by the applicant should not be approved. Instead, if the applicant wishes to amend the application in the manner described I would be prepared to amend the consent to this effect. This would of course be subject to the conditions in Exhibit E and the additional condition involving the maintenance of the driveway.
___________________
- T A Bly
Commissioner of the Court
ljr
0
0
2