Birkbeck v Ku-ring-gai Council

[2018] NSWLEC 1657

Land and Environment Court

New South Wales

Medium Neutral Citation:	Birkbeck v Ku-ring-gai Council [2018] NSWLEC 1657
Hearing dates:	3-4 December 2018
Date of orders:	19 December 2018
Decision date:	19 December 2018
Jurisdiction:	Class 1
Before:	Horton C
Decision:	(1)   Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit 7; (2)   The appeal is upheld; (3)   Development consent is granted for Development Application No. DA18/170368 for alterations and additions including a first floor addition to a heritage item at 29 Marian Street, Killara, subject to the conditions annexed hereto and marked “A”; (4)   The exhibits are returned, except for Exhibits 7 and 8 and Exhibit A.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions; existing heritage item; amended plans’ orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979
Texts Cited:	Ku-ring-gai Development Control Plan 2015
Category:	Principal judgment
Parties:	David Birkbeck (First Applicant) Jodi Birkbeck (Second Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: J Palmer, Pikes & Verekers Lawyers (Applicants) C McFadzean, Swaab (Respondent)
File Number(s):	2018/170368
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0418/17 for alterations and additions including a first floor addition to a heritage item at 29 Marian Street, Killara (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to conciliation on 3 December 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and proceeded forthwith to hearing on 3-4 December 2018, pursuant to s 34(4)(b)(i) of the LEC Act. 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 contentions in the matter can be summarised as follows;

4. The proposal results in unacceptable impacts on the heritage item at 29 Marian Street, the adjoining heritage items and the Marian Street heritage conservation area.

5. The Heritage Impact Statement is insufficient and inadequate.

6. The application does not provide a photomontage or perspective indicating the visibility of the proposed rear addition from the streetscape and adjacent heritage items.

The house and its setting

7. The site is a regular shaped allotment known as Lot F, DP 358013, 29 Marian Street, Killara with an area of 1,745m2 and containing an existing dwelling erected in 1937.

8. The existing dwelling is a predominantly single storey home in the Spanish Mission style designed by architect Geoffrey Loveridge. To the rear of the home, a single storey rear wing surrounds a three-sided courtyard that is adjacent to a swimming pool and landscaped garden.

9. Vehicular access to the property is provided by a wide bitumen driveway that provides access to an original single garage integrated under the existing home, and along the western boundary to a separate garage located to the rear of the property and built in the 1980’s.

10. The site is located on the northern side of Marian Street, and is set high above the street due to a steep rise in the topography.

Planning framework

11. The site is zoned R2 (Low Density Residential) under the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015). The objectives of the R2 Zone are as follows:

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

12. The site is identified in Schedule 5 Environmental Heritage – Part 1 Heritage items of the KLEP as having local heritage significance (heritage item no. I323). The relevant terms of the KLEP 2015 are as follows;

5.10 Heritage conservation

(1) Objectives The objectives of this clause are as follows:

…

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

…

(4) Effect of proposed development on heritage significance. The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

13. The relevant objectives and controls for alterations and additions to heritage items of Ku-ring-gai Development Control Plan 2015 (DCP 2015) are as follows;

Section 19C.1 Local character and streetscape

Section 19C.6 Roof Forms and Structures attached to roofs

Section 19E.1 Building Design

Section 19F.1 Local character and streetscape

Expert evidence

14. The applicant relied on the expert heritage evidence of Mr John Oultram. The Council relied on the expert heritage evidence of Ms Leona Goldstein.

15. The experts agree that part of the heritage significance of the building is its association with James George Edwards, who is known as the ‘father of Killara’. However, the experts also agree that the original home of James George Edwards was substantially remodelled in 1937 and that, as a result, little or no original building fabric remains from the Edwards home.

16. Ms Goldstein does not support the application, and contends that a first floor addition would adversely impact the significance of the heritage item, and the Marian Street Heritage Conservation Area. She is of the opinion that the building is of heritage value as it represents an example of a home from the interwar period with a rear service wing that is intact, and surrounds a courtyard which is consistent with the Spanish Mission style.

17. Mr Oultram is of the opinion that the heritage value of the dwelling resides primarily in the presentation to the street, and to a lesser extent in the rear wing which has already been substantially altered to create large openings between rooms, and to create a connection to the external living areas of the site.

Amended proposal

18. During the hearing, the applicant tendered an amended proposal containing modifications (Exhibit 7) discussed during the conciliation phase by the parties.

19. The amendments include;

• Pull back eastern wall 700mm and retain existing roof to ridge

• Pull back southern wall 700mm and retain western roof to ridge height

• Provide ‘flat’ roof between retained ridge

• Place north and west wall of extension on inner face of existing wall below, to increase retained roof skirt by 150mm

• Retractable awning roof over rear courtyard acceptable

20. While Ms Goldstein does not support a first floor addition, the experts did agree that the amendments to the proposal improve the relationship between the proposed development and the existing heritage item, and would reduce the likelihood that the proposed development would be visible when viewed from Marian Street.

Does the proposal result in unacceptable impacts on the Marian Street heritage conservation area?

21. The Marian Street Heritage Conservation Area (HCA) comprises an area bounded by Marian Street, Culworth Avenue, Lorne Avenue and the Pacific Highway, and is identified in the KLEP as ‘C24’.

22. The experts do not agree on the predominant character of the C24 HCA. Mr Oultram is of the view that the area has no predominant character and that it can be best described as ‘intermingled’ between one and two storey buildings that are elevated and imposing to the street as a result of the steep rise in landform to the north from Marian Street. He contends that the slope in the land and the resulting presentation to the street is not envisaged in the Controls found in 19C.1 (2) of the DCP Local Character and Streetscape.

23. Ms Goldstein contends that while the street may contain a mix of building scales, the subject site is in an enclave that is single storey. Following a view of the site, and agreement by the parties that at least five (5) 2-storey properties are contained within the C24 HCA, as well as a Reservoir pump station located at 20 Lorne Avenue, I prefer Mr Oultram’s characterisation.

24. Mr Oultram is of the view that the proposed development is consistent with objectives 2, 3 and 4 of Section 19C.1 of the Ku-ring-gai DCP by virtue of setting back the first floor addition to conserve all of the primary form and street elevation of the current house, and so that the addition will not be visible from Marian Street. The amended plans (Exhibit 7) and photomontages prepared from Marian Street (Exhibit E) support this view.

25. The amended plans (Exhibit 7) increase the setback of the first floor addition to the east and south – and to a lesser extent to the north and west. The effect of this amendment allows a greater portion of the existing roof form to the primary frontage, and the rear service wing, to be retained and for an existing chimney associated with the fireplace located in the New Library on the ground floor to remain as a freestanding element above the existing eaves line. In my view, the amendments appear consistent with the objectives and controls pursuant to Section 19C.6, and Section 19E.1 and Section 19F.1 of the Ku-ring-gai DCP.

26. After a view of the site from the relevant viewing points, and consideration of photomontages tendered by the applicant (Exhibit E), I accept and agree with the applicants’ heritage expert that the amended plans evident in Exhibit 7 will result in views of the heritage item that will remain largely unchanged from the public domain of Marian Street.

Does the proposal result in unacceptable impacts on the adjoining heritage items?

27. No.27 Marian Street is identified in the Heritage Impact Statement as a single storey house from the interwar period and in the Olde English style designed by architects Peddle Thorp and Walker in 1933. It is identified in Exhibit 4 as heritage item I322. It is separated from the subject site by a driveway providing access to the battle-axe allotment to the rear of No.29 Marian Street.

28. No.33 Marian Street is identified in the Heritage Impact Statement as a single storey house from the interwar period and designed by architect Eric Nicholls (or his partner, Walter Burley Griffin). It adjoins the subject site on the southern boundary, and is identified in Exhibit 4 as heritage item I325.

29. When viewed together from Marian Street, the three homes present in a landscape setting and with no consistent style, materials or finishes – other than a low stone fence fronting Marian Street that is shared by No.27 and No.29.

30. For the reasons stated previously, I accept and agree with the applicants’ heritage expert that the amended plans evident in Exhibit 7 will have no impact on the setting or significance of the adjoining heritage items.

Does the proposal result in unacceptable impacts on the heritage item at 29 Marian Street?

31. No.29 Marian Street presents as a fine building in the Spanish Mission style, and in very good condition. It appears well maintained, with original materials and finishes evident in the primary frontage.

32. From a view of the site, it is clear that the rear service wing has been altered and modernised, particularly with the removal of existing internal walls to combine the kitchen and living rooms, and with the addition of large openings to the external living and garden to the north and east of the site. The courtyard is partially enclosed with a hipped roof in the style of the rear wing; supported by posts which elevate the roof structure above the eaves line of the rear service wing.

33. Ms Goldstein is of the firm view that “the most significant features of the house include all the existing parts of the building which include the rear wing section” (Exhibit 3). Mr Oultram identifies the rear service wing to have a mix of moderate or little significance (Exhibit D, Figure 5.1), given the extent of pre-existing unsympathetic alterations. I accept and agree with Mr Oultram’s evidence on the significance of the rear service wing.

34. The amended plans (Exhibit 7) do not propose to modify the footprint of the rear service wing; retains the essential cellular nature of individual rooms that have not already been altered; removes the unsympathetic roof over the courtyard and proposes a retractable awning to improve the reading of the courtyard, and preserves the existing roof intersection between the primary frontage and the rear service wing. Further, the setback of the first floor extension provides for a greater ‘skirt’ to be read around the perimeter of the rear service wing, and proposes no amendment to the windows and doors when viewed from the exterior of the rear service wing. In this regard, the amended plans appear consistent with the objectives of 19E.1 of the DCP Building Design, to “ensure the significant external features of a heritage item and its setting are retained and new development is sympathetic in terms of bulk, form, style, character, scale and materials.”

Insufficient Information – the Heritage Impact Statement

35. The Council contends that the Heritage Impact Statement (HIS) prepared by the applicant is insufficient and inadequate, in that it;

• Insufficiently describes how the proposed works affect the heritage significance of the place; the reasons taken to mitigate negative impacts; and alternate options.

• Fails to identify parts of the building which are original fabric.

• Inadequately addresses the impact of the heritage values of the house that result from the proposed loss of features and the introduction of new elements.

• Fails to include an assessment of the Grading Significance of the building to determine the levels of significance of the existing fabric.

• Does not provide a photomontage or perspective indicating the visibility of the proposed rear addition from the streetscape and adjacent heritage items.

36. The Heritage Impact Statement appears to adequately address, in my view, the impact of the proposed works in Section 7 of the HIS; and adequately address, in sufficient detail, the impact on the heritage values of the house from the proposed loss of features and the introduction of new elements (see Section 7.2 and 7.3).

37. The Council expert, Ms Goldstein, proposed alternate options (Exhibit 3, Appendix B), although it was agreed on site that the visual impact of these options resulting from the likely height of the development would have adverse impact on adjoining properties.

38. During the hearing, the applicant provided an addendum to the Statement of Heritage Impact in the form of Section 11 – Gradings of significance and including Figure 5.1 that ranked the significance of existing fabric, and the applicant tendered photomontages (Exhibit E) from two viewing positions. In my view, this is adequate to consider the effect of the proposed development on the heritage significance of the item or area concerned.

39. To the extent that the HIS fails to identify parts of the building that are original fabric, as I have already stated, the extent of original fabric appears to be the subject of some speculation given the extent of demolition and remodelling that took place in 1937. While Ms Goldstein is of the view that some fabric may have been retained in the remodelling, the basis for this appears to be a superimposition of a general outline of a building on the site and taken from a hand drawn survey prepared on or around the c1890’s.

40. The HIS appears to address the extent of original fabric with the statement “The original Springdale was built in about 1898 and the current house is very likely a complete replacement.”

41. In considering how the proposed works affect the heritage significance of the place and the reasons taken to mitigate negative impacts, the applicant appears to rely, in part, on information contained in the Heritage Listing Sheet prepared by the Council. During the hearing, the parties made submissions to the Court on the weight that should be given to this information, found in the Heritage Listing sheet (2006), and the Heritage Data Form (2018) and so for this reason, I will now address this question.

42. The Heritage Impact Statement (Exhibit D) was prepared by Mr John Oultram, and contained Appendix B – Heritage Listing sheet that included a statement of significance for the building that was prepared by Council in 2006. I am advised that the building was listed as a heritage item in 2011. The original Heritage Listing Sheet contained the following recommendations;

“It is recommended that no.29 be listed as a heritage item as a good and largely intact (external) example of a Spanish Mission style dwelling and for its association with James George Edwards who was instrumental in the development of the suburb of Killara. The house makes a positive contribution to the streetscape.

It is therefore recommended that any future modifications to the building should be restricted to those areas of the building which are not visible from Marian Street:

1) the general character, style and detail of the façade should be retained intact

2) the existing gardens and planting to the Marian street frontage should be retained intact

3) the stone fence and gate which extends along in front of No.27 should be retained intact.”

43. Subsequent to the filing of the appeal, on 27 November 2018, the Heritage Listing Sheet was amended (Exhibit 5 – Heritage Data Form). A reference to the dwelling being the home of JG Edwards was removed, and the recommendations were amended.

44. The amended Heritage Data Form, dated November 2018 (Exhibit 5) contains the following recommendations:

“It is recommended that

1) 29 Marian Street Killara remain a heritage item and be managed as such

2) the general character, style and detail of the building be retained

3) the existing gardens and planting to the Marian Street frontage be retained

4) the stone fence and gate which extends along in front of N0.27 be retained”

45. The Court is not being asked to make an assessment of the heritage item, or the value of the item in the Ku-ring-gai local government area. However, it appears relevant that the applicant relied, appropriately in my view, on the Heritage Listing Sheet prepared by Council in 2006 during the preparation by him of the Heritage Impact Statement, only to find the statement of significance, contained in the Heritage Data Form was amended late in the proceedings.

46. I am advised by the Council that the process of updating Heritage Data Forms is a project that commenced in August 2018, is ongoing, and is led by Ms Andreana Kennedy. While it is a good thing for research to be ongoing, and for information on heritage items to be regularly updated, it is also reasonable, in my view, for the applicant to rely on the Heritage Listing Sheet that was current at the time of lodging the Development Application and remained current until 27 November 2018 and states, relevantly, that “any future modifications to the building should be restricted to those areas of the building which are not visible from Marian Street”.

Conclusion

47. Having considered the effect of the proposal on the heritage significance of the item pursuant to cl 5.10(4) of LEP 2015, it is my opinion, based on all of the evidence before me, that the proposal retains the significant external features of the heritage item and its setting; that the new development is sympathetic in terms of bulk, form, style, character, scale and materials; and that the new development will not dominate, detract from or compete with heritage items or the heritage conservation in the vicinity.

Orders

48. The orders of the Court are:

1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit 7;

2. The appeal is upheld;

3. Development consent is granted for Development Application No. DA18/170368 for alterations and additions including a first floor addition to a heritage item at 29 Marian Street, Killara, subject to the conditions annexed hereto and marked “A”;

4. The exhibits are returned, except for Exhibits 7 and 8 and Exhibit A.

………………………..

T Horton

Commissioner of the Court

Annexure A (68.3 KB, pdf)

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Decision last updated: 19 December 2018