Barkl v Ku-ring-gai Council

[2015] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barkl v Ku-ring-gai Council [2015] NSWLEC 1076
Hearing dates:	28 January 2015
Decision date:	18 March 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.The appeal is upheld. 2.Development Application No. 184/14 for alterations and additions to an existing dwelling at 50 Chelmsford Avenue, Lindfield, is approved, subject to the conditions of consent at Annexure ‘A’. 3.The exhibits, other than exhibit B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to a dwelling identified as contributory to a heritage conservation area; impact on heritage significance of heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Ms Donna Barkl (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr S. Kondilios Solicitor (Applicant) Mr A. Hudson (Respondent) Solicitors: Hall & Wilcox Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10885 of 2014

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 184/14 for alterations and additions to an existing dwelling (the proposal) at 50 Chelmsford Avenue, Lindfield (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to mandatory conciliation on 28 January 2015, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

3. The Council’s contention in the matter is that the proposed main bedroom wing over a basement garage, internally connected to the dwelling and adjacent to the existing dwelling, would have an unacceptable impact on the heritage significance of the C32 Clanville Conservation Area (Clanville CA) and is contrary to the relevant planning controls. The Council is concerned that granting consent to the proposal will set a precedent for similar proposals within the Clanville CA.

The site and its context

4. The site is on the north-western side of Chelmsford Avenue, to the west of Archibald Road and to the south-west of the corner of Chelmsford Avenue and Caper Street. The site is 1103.6sqm in area (exhibit A) and contains a one and two storey dwelling with a double garage. The site falls to the north-east.

5. The original single storey, Federation style dwelling was constructed in 1917 and was positioned on the site with a generous setback from the north-eastern side boundary. A single storey contemporary double garage with a flat roof has been constructed on the north-eastern side of the dwelling, maintaining the front setback established by the original dwelling. The original dwelling has been altered and extended at the rear, with a first floor addition.

Background and the proposal

6. There is an existing consent for the site, which includes a free standing double carport in the position of the existing garage (DA 1525/03, exhibit E).

7. Prior to the hearing, leave was granted by the Court for the applicant to rely on an amended proposal (exhibit B).

8. The proposal is to demolish the existing garage and replace it with a new double garage on a basement level (RL82.28) and a main bedroom suite over (RL84.88), linked to the original dwelling (Ground Floor RL84.57), via the front bedroom on the eastern corner. The addition is positioned with a 1m setback from the front setback established by the original dwelling and the linking structure is setback a further 950mm. The roof over the addition is hipped with a gablet facing the side boundary, with face brick walls to match the existing brickwork, sandstone cladding to the basement level and a rendered side elevation (Revision B, exhibit B).

9. There are minor alterations proposed to the rear of the dwelling and a new front fence (as modified by condition 3(d) of exhibit 3), which are not in contention.

10. Two further iterations of the front elevation were tendered. Revision C (exhibit F) further increased the setback of the linking structure to retain the existing side window to the bedroom on the eastern corner of the original dwelling, reduced the ridge height of the linking structure and included a gable over the main bedroom suite facing the street and a bay window. Revision D (exhibit G) was the same as Revision C, except with a flat roof over the linking structure at a height matching the top of the gutter of the original roof.

Planning framework

11. The site is zoned Residential 2(a) pursuant to the Ku-ring-gai Planning Scheme Ordinance (KPSO) and the proposal is permissible with consent. The site is located within the Clanville CA and the relevant objectives of clause 61D of the KPSO, ‘Heritage conservation’, are:

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views

12. The relevant portion of the statement of significance for the Clanville CA is as follows (quoted in exhibit D, p 5):

The HCA has high aesthetic significance as a cohesive early twentieth century and Interwar development and for the high proportion of quality houses

13. The draft Ku-ring-gai Local Environment Plan 2013 (draft LEP) zones the site R2 Low Density Residential and the proposal would be permissible under the draft LEP. The relevant objective of the heritage conservation clause 5.10(b) of the draft LEP is the same wording as sub-clause 61D(b) quoted above. The draft LEP includes a savings provision at clause 1.8A.

14. The proposal is subject to the provisions of The Ku-ring-gai Residential Design Manual Development Control Plan No. 38 (DCP 38). The assessment criteria at 4.1.3 of DCP 38 in regard to building setbacks requires development to be appropriately located so as to maintain streetscape character and the first floor of any dwelling is to be setback a minimum of 2.5m or 15% of the site width, whichever is the greater. The building height plane at 4.2.2 of DCP 38 nominates a height of 3m at the site boundary with a projection of 45 degrees across the site.

15. DCP 38 includes at 4.5.3 ‘Design of carports and garages’, that any carport or garage of a dwelling in a conservation area must be a separate building to the dwelling.

16. The draft Ku-ring-gai Development Control Plan (draft DCP) (which Mr Hudson submits has been adopted by Council as a policy document in anticipation of the future gazettal of the draft LEP) includes, at Part 20, objectives and controls for heritage items and heritage conservations areas. The siting of alterations and additions is to maintain the established streetscape pattern, including the main dwellings, garages, carports and garden structures, at 20C.2.

Expert evidence

17. Expert heritage evidence was provided by Mr Robert Staas on behalf of the applicant and Ms Leona Goldstein on behalf of the Council. Mr Andrew Minto on behalf of the applicant and Ms Bonnie Yue on behalf of the Council gave expert planning evidence during the conciliation phase of the proceedings.

18. According to Ms Goldstein, the garage or carport should be separate from the dwelling and ideally located further to the rear of the site, adjacent to the rear additions. In her view, it is important that the original dwelling is extant and can be seen and interpreted as an original dwelling dating from the key period of the Clanville CA. Ms Goldstein noted that there is an established pattern within the street, comprised of dwellings on one side of the site with a driveway along the side boundary which traditionally provided access to a garage located at the rear of the site.

19. According to Mr Staas, all the dwellings in the section of Chelmsford Avenue within the Clanville CA are identified as contributory and this demonstrates that the character identified as being contributory to the heritage significance of the Clanville CA includes the existing alterations and additions made to dwellings and attached and separate garages and carports.

20. The experts agreed on the following:

• The gable shown in Revisions C and D (exhibits F and G) is a more appropriate roof form than a hipped roof over the main bedroom wing; and

• Condition 3(e) of exhibit 3, ‘The windows in the front façade are to be timber framed with similar proportions to the existing windows on the easting front façade’ can be deleted and instead the drawings are to show a window consisting of four 600mm wide sashes of similar proportions to the fenestration of the original dwelling.

21. The experts disagreed on the appropriateness of the bay window in the centre of the front elevation of the addition, shown on Revisions C and D (exhibits F and G). According to Mr Staas, the bay window articulates the façade will result in the proposal appearing less bulky and according to Ms Goldstein, a bay window above the garage may appear as too prominent. In Ms Goldstein’s opinion, if there is to be a bay window, it should not project too far forward. Mr Staas responded that an appropriately detailed bay window within an addition to a Federation style dwelling would project between 150 and 300mm and be constructed from a traditional box frame, with blank sided and an overhanging roof.

22. The experts disagreed on whether the link structure between the original dwelling and the proposed addition should have a flat roof or a raked roof. Mr Staas preferred the raked roof shown in Revision C and Ms Goldstein preferred the flat roof shown in Revision D. Ms Goldstein’s preference was based on preserving the chimney when viewed from the public domain, as the raked roof would require the roof to be constructed around the chimney.

23. The experts disagreed on appropriate materials for the proposal, should it be granted consent. According to Mr Staas, the face bricks of the original cottage could be closely matched for the upper level with sandstone cladding for the garage to articulate the proposal; or it would also be appropriate in his view to smooth render the masonry of the basement level in response to the plinth of coursed sandstone that forms the footings of the original dwelling and to render and batten the upper level, to give a ‘secondary’ character to the original dwelling. In Ms Goldstein’s view, the sandstone cladding to the basement celebrates the garage and makes a ‘strong statement’ and instead the garage should appear subservient to the dwelling. In her opinion, the bricks should match the commons used in the side elevations of the original dwelling.

Findings

24. There was much discourse during the conciliation and hearing as to Council’s experts’ view on the ideal location on the site for a garage or carport, when compared to the location of garages and carports within the Clanville CA. However, the garage on the site is extant and located adjacent to the existing dwelling. While I accept the proposal is to rebuild and minimally adjust the position of the garage, the issue before me is not whether the position of the garage is acceptable in terms of its impact on the heritage significance of the Clanville CA, because the dwelling (including the alterations and additions to the dwelling and the existing double garage) has been identified as contributory to the Clanville CA. The Council’s issue with the proposal is therefore confined to the addition of the main bedroom suite over the garage and the linking structure between the original dwelling and the proposal.

25. I accept and agree with Ms Goldstein’s opinion that it is important that the original dwelling can be seen and interpreted as an original dwelling dating from the key period of the Clanville CA. This, however, does not preclude sympathetic, respectful and appropriate additions to the dwelling, including additions that are visible from the public domain.

26. I am satisfied that the linked pavilion form of the addition is acceptable, on the basis that it has a negligible impact on the original fabric of the dwelling and that it will not mimic or compete with the form, materials or detailing of the original dwelling. I accept and prefer Mr Staas’ evidence that the proposal will not detract from the contribution made by the existing dwelling to the heritage significance of the Clanville CA, as the proposal is designed to have a minimal impact on the original dwelling and places the addition in the location of the existing garage, maintaining the established streetscape pattern. The proposal is sympathetic to the existing architectural character of the Clanville CA and meets the relevant objective of the KPSO, to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views.

27. I accept Ms Goldstein’s evidence that Revision D (exhibit G) with a flat roof over the linking structure is preferable to Revision C (exhibit F), as the flat roof over the linking structure has less of an impact on the existing chimney.

28. I accept Mr Staas’ evidence in regard to the projecting bay window and its appropriate detailing, as it will provide relief and articulate the street elevation of the proposal. I accept the agreement of the experts in regard to the four windows within the bay window.

29. I accept Mr Staas’ evidence in regard to the appropriate materials for the proposal. I disagree with Ms Goldstein’s evidence regarding the inappropriateness of the sandstone cladding of the basement level, as the sandstone cladding of the basement level of the proposal is a response to the plinth of coursed sandstone that forms the footing of the original dwelling. The masonry creates a visual base on which the dwelling sits and is appropriately a solid, earthen form that raises the living areas off the ground. Distinguishing the basement from the upper level is an appropriate response to the original design. Therefore, the materials are to be either smooth rendered masonry to the basement level with a rendered and battened upper level in accordance with Mr Staas’ evidence and to his design; or sandstone cladding to the basement level as proposed, with a rendered and painted masonry upper level; at the applicant’s discretion.

Conclusion

30. The proposal, as modified in accordance with the experts’ evidence, is sited appropriately in response to the opportunities and constraints of the site and maintains the streetscape pattern. I am satisfied that the proposal is distinguished and appropriately deferential to the original fabric of the dwelling; that it will have a negiligible impact on the original fabric of the dwelling and that it will not detract from the contribution made by the original dwelling to the heritage significance of the Clanville CA, nor will it detract from the established character of Chelmsford Avenue.

31. As the garage on the site is extant and located adjacent to the existing dwelling, the issue before me is not whether the position of the garage is acceptable in terms of its impact on the heritage significance of the Clanville CA, because the existing dwelling, including the alterations and additions and the double garage, has been identified as contributory to the Clanville CA. This distinguishes this matter from necessarily creating a planning precedent within the Clanville CA and any future applications should be considered on their own merits.

Directions

32. The following directions for amended architectural drawings were handed down on 3 February, 2015:

• The architectural drawings are to incorporate the street elevation as proposed in Revision D (exhibit G);

• The existing chimney on the eastern corner of the original dwelling is to be shown on all plans and elevations and noted as retained;

• The linking structure is to be positioned so as to retain both existing windows in their existing openings on the north-eastern side elevation of the original dwelling;

• All facades of the proposed addition are to be either smooth rendered masonry with a rendered and battened upper level to Mr Staas’ design, or sandstone cladding to the basement (to echo the plinth of coursed sandstone of the original dwelling) with a rendered and painted masonry upper level;

• The bay window to the front elevation of the proposal is to be a maximum projection of 300mm in a wall mounted box frame with blank sides, with four 600mm wide sashes, to Mr Staas’ design;

• The amended plans are to comply with and demonstrate Council’s undisputed conditions in 3(b) and (d) of exhibit 3;

• The amended plans are to include a north-east/south-west section through the proposal and the linking structure to demonstrate that there is a sufficient floor to ceiling height under the flat roof of the linking structure to access the main bedroom suite; and

• The amended architectural drawings are to comply with Schedule A of the Court’s Practice Note Class 1 Development Appeals.

• The respondent is to file amended conditions of consent deleting conditions 3(a) to (f).

33. The applicant filed the amended plans on 12 February 2015 and the respondent filed the updated conditions of consent on 4 March 2015.

Orders

34. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 184/14 for alterations and additions to an existing dwelling at 50 Chelmsford Avenue, Lindfield, is approved, subject to the conditions of consent at Annexure ‘A’.

3. The exhibits, other than exhibit B, are returned.

____________

Susan O’Neill

Commissioner of the Court

10885 of 2014 - Annexure A (50.7 KB, pdf)

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Decision last updated: 31 March 2015