Caffrey M and Anor v Waverley Council

[2007] NSWLEC 616

Land and Environment Court

of New South Wales

CITATION:	Caffrey M and Anor v Waverley Council [2007] NSWLEC 616
PARTIES:	APPLICANT: Melanie Caffrey and Craig Blair RESPONDENT: Waverley Council
FILE NUMBER(S):	10689 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Heritage impact
LEGISLATION CITED:	Waverley Local Environment Plan 1996, (WLEP) Waverley Development Control Plan 2006, (WDCP) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Totem Queens Park Pty Limited v Waverley Council [2004] NSWLEC 712 Bly C 21 December 2004
DATES OF HEARING:	13 September 2007
DATE OF JUDGMENT:	25 September 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr G A Green, solicitor with Ms R McCulloch, solicitor SOLICITORS: Pike Pike and Fenwick RESPONDENT: Mr S J Brockwell, barrister, instructed by Ms K Allen, solicitor SOLICITORS: Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

25 September 2007

10689 of 2007 - Melanie Caffrey and Craig Blair v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a development application to alter and add to a single-storey heritage listed dwelling to provide a new kitchen, an upper level extension and an in-ground pool at Lot 3, DP 308188, being No 14 Gipps Street, Bronte.

2 I visited the land in company with the parties on the morning of the hearing and heard from local residents.

3 I have concluded that the application should fail for reason of the proposal having an unsympathetic relationship with the heritage-listed dwelling on the land and the group of nearby houses.

The land

4 The land is situated on the northern side of Gipps Street and is occupied by a single-storey Federation style dwelling of considerable architectural merit. The existing residence ‘Wairuna’ is the easternmost residence of a highly cohesive group of four near-identical houses being Nos. 8, 10, 12 & 14 Gipps Street; all of which are local heritage items. The house and the group provide a significant contribution to the established streetscape and to the locality. Each heritage-listed dwelling, except No 12 Gipps Street, has a pyramidical roof form. No 12 Gipps Street has been extended with a hipped roof of similar pitch that disguises the original roof form.

5 The land is rectangular in shape with a frontage of 12.28m, a depth of 34.745m and an area of 427m2. The land slopes gently down from the front to the rear with a fall of about 1m.

6 The area is residential in character but is not included in the Bronte Residential Character Study.

7 Nearby, there are single-storey and two-storey dwellings of various architectural styles from the early decades of the 20th Century. The existing dwelling is part of an ensemble of Federation and transitional Federation masonry cottages on the northern side of Gipps Street that were evidently all built in a matching architectural style with identical siting, though Nos 4 & 6, due to unsympathetic renovation, retain only their original roof form and front set back. The intact group of four retain their original street-front facades and similar rear setbacks.

Relevant planning controls

Waverley Local Environment Plan 1996, (WLEP)

8 Under the provisions of the WLEP the land is zoned 2(a) residential and the proposal is permissible with consent.

9 No 14 Gipps Street, ‘Wairuna’ is listed in Schedule 5 – ‘Heritage items’ - of WLEP as ‘Nos 2, 8-14 Gipps Street’. Part 4 – ‘Heritage provisions’ of the WLEP addresses the protection of heritage items.

10 Under the provisions of the WLEP cl 3 ‘Specific aims’ in relation to heritage conservation the council seeks:

(a) to conserve the environmental heritage of the Council’s area;
(b) to integrate heritage conservation into the planning and development control process;
(c) to identify heritage items, heritage conservation areas and archaeological sites;
(d) to ensure that development does not adversely affect the heritage significance of heritage items, heritage conservation areas and archaeological sites and their settings;
(e) to control the demolition of heritage items and building and works within heritage conservation areas; and
(f) to provide for the control of development associated with or in proximity to heritage items and heritage conservation areas.

11 Clause 45 of the WLEP specifies development may only be carried out only with development consent.

12 Under cl 45(3) WLEP:

When considering whether a development application is required by this clause the Council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item…

13 Under cl 45(4) WLEP:

The Council may refuse to grant a consent required by this clause until it has considered a conservation plan so as to enable the Council to fully consider the impact of the proposal on the heritage significance of the item and its setting…

14 Under cl 49 WLEP:

The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item…and on its setting, when determining an application for consent to carry out development on land in its vicinity.

15 So the Court on appeal need consider the impact of the proposal to alter and add to No 14 Gipps Street on the heritage significance of the item and its setting and on the heritage significance of other items and their settings in the vicinity. Thus the impact of the proposal on No 12 and No 10 Gipps Street comes into consideration.

Waverley Development Control Plan 2006, (WDCP)

16 The WDCP applies to the land including Part D1 - Dwelling House and Dual Occupancy Development.

17 Under Part H1, WDCP, cl 1.0, p 2 the heritage objectives are:

(a) Provide design guidelines and principles to ensure that the significance of heritage items… are not adversely affected by new development.
(b) Provide a consistent and coherent policy for applicants, Council officers and the community for the assessment of applications affected by heritage controls.
(c) Encourage alterations and additions to heritage property, which are sympathetic to the character and quality of the existing building and streetscape.
(d) Discourage development and works, which will adversely affect the heritage significance of a heritage item…

18 Under Part H1, WDCP cl 5 pp 10-17 under the heading of ‘Planning Parameters’ design principles; scale and proportion; shape; materials; roofing materials and roof form; fitting into the context of your street and area; land size and siting; site planning priorities; siting of car accommodation; modifying existing facades; fencing; materials and details are mentioned.

19 Under Part H1, WDCP, cl 4.4, p 9 under the heading of consultation with council:

Applicants are strongly advised to consult with Council’s Planning staff before considering any work to a heritage item…
Council advises that applicants show Council staff their proposals in sketch form initially before going to the expense of having detailed plans prepared.

20 Development application No 754/06 was lodged with the respondent council on 15 December 2006 to demolish, alter and add to a single-storey dwelling on the land:

· At ground floor: demolish an existing 1970’s single-storey rear addition and construct new open plan kitchen and living area plus laundry on the lower level. The lap pool will be constructed at the rear of the new addition.

· At first floor: new level constructed above new addition to include main bedroom & en-suite and study.

Notification
21 The application was formally advertised for 50 days from 21 December 2006 and notified to nearby property owners and occupants and the council received five submissions. The following issues were raised in the submissions:
· Non-compliance with the WDCP regarding height and bulk, rear setback, streetscape impacts, privacy and noise control, landscape component;
· concerns with noise impacts from swimming pool activities;
· overlooking as flat roof could be used as deck;
· concerns that the proposal does not match renovations of other heritage dwellings nearby in form, materials and orientation;
· building form isolates new from old and does not match surrounding dwellings: and
· is not a sustainable design.

22 On 26 April 2007 amended plans were received by the council, which included minor amendments to the roof deck. The council’s assessment officer considered that it was not necessary to re-notify these amendments.
23 On 24 April 2007 the council reporting officer recommended the proposal be approved. The Development and Building Unit reviewed the application on 9 May 2007 and recommended approval subject to deletion of the in-ground pool and a condition that related to conservation issues for proposed joinery separating two rooms within the existing dwelling.
24 The council’s Development Control Committee (DCC) met on the 22 May 2007 and the application was deferred to a council site meeting scheduled on the 2 June 2007.
25 At the site inspection on 2 June 2007 a petition signed by fourteen residents was presented to the councillors. The following issues were raised in the petition:
· the additions are inappropriate; oversized, unneighbourly; not energy efficient; set an unfortunate precedent; breach heritage guidelines;
· not sympathetic to historic significance; and
· not in keeping with heritage street.

26 Following the council’s site inspection the committee resolved the following:

That the application be deferred to allow the applicant to have further discussions with Ward Councillors and Council’s Heritage Officer with a mind to making the design more in keeping with the group of heritage items.

27 Further amended plans were submitted to the council on 2 July 2007. Minor changes were made to the internal arrangement of the ground floor, and allowed for the upper floor to be reduced in plan southwards and to increase the rear setback by 700mm to align with the rear setback of No. 12 Gipps Street.

The council’s decision

28 The council’s DCC again met on the 7 July 2007 and the application was refused for the following reasons:

1. The proposal is not an acceptable development under Waverley Local Environmental Plan

1998, in regard to;

a. Residential 2(a) zoning objective (b) concerning local amenity;
b. Specific Aims 6(a), (b), (d) and (f) on heritage conservation; and
c. Heritage Provisions 45(3) and 49.

The major part of the significance of the item is it is one of a set of four near identical intact cottages which are protected as a set in Local Environmental Plan 1996.
Schedule 5 - Heritage Items, at 8, 10, 12 and 14 Gipps Street and DCP 2008.

The hearing

29 The appeal was filed on 19 July 2007.

30 At the hearing the Court heard evidence on behalf of the respondent council from:

· Mr R J Kaye, resident of No 8 Gipps Street, Waverley;

· Mr J Namey, resident of No 12 Gipps Street, Waverley;

· Ms M Hope, resident of No 7 High Street, Waverley and development application representative of the Charing Cross Precinct;

· Mr C Sevitt, resident of No 15 Gipps Street, Waverley;

· Ms L Joslyn, resident of No 8 Gipps Street, Waverley;

· Mr R A Moore, architect and conservation architect.

31 On behalf of the applicant Mr R M Staas, heritage consultant, gave evidence. Also supportive was:

· Mr J Douse, architect, resident of No 13 Royalston Street, Paddington;

· Ms M Caffrey, owner and applicant;

· Mr C Blair, owner and applicant;

· Mr W Davidson, resident of No 10 Gipps Street, Waverley; and

· Ms G Waddy, resident of No 10 Gipps Street, Waverley.

32 Mr L M Fletcher was the single-party expert in town planning.

The contentions

33 On 8 August 2007 the council filed a statement of contentions.

Heritage

Particulars

a. the subject site is one of 4 identical heritage listed single storey cottages forming a cohesive group;
b. the proposal will adversely impact upon the significance of the subject heritage item and erode the cohesiveness of the group of heritage items of which it forms a part;
c. the unsympathetic design of the proposal will be highly visible from Gipps Street, Gipps Lane (to the east) and Gibson St (to the north) and is inappropriate for the subject heritage item in terms of geometric form, architectural style, materials and siting: and
d. the unsympathetic design will diminish the integrity of the group of 4 identical heritage listed items.

Aims & objectives of WLEP 1996

Particulars

Setbacks

Particulars

Streetscape and visual impact

Particulars

Public Interest

6. The proposed development should not be approved having regard to the matters raised in submissions received by Council.

34 The heritage impact was the salient issue.

The evidence and findings

Heritage impact

35 There appears to be a mismatch between the advice being given by council staff in pre-development application meetings and the outcome being sought by the council. The council staff recommended approval of the application on the advice of the heritage consultant Mr C Brady. Eventually the DCC recommended refusal. This process must have been frustrating for the applicants.

36 Ms Caffery, one of the applicants, said that she and her partner Mr Blair have been meticulous in following the planning process. They sought advice from Mr C Brady the council’s heritage adviser, and designed within the parameters set by him. They had regard for the alterations and additions endorsed by Mr Brady as a good design outcome at No 12 Carter Street.

37 Apparently, Mr Brady was intent on preserving the pyramidical roof form of the existing dwelling on the land and to this end encouraged the owners here to add within a cubic form at the rear two storeys in height. The result, according to much of the evidence before me, would be a most unsympathetic design that apparently does not accord with the council’s heritage controls.

38 Messrs Staas and Moore also supported the retention of the pyramidical roof form of the existing dwelling on the land. Both had their methods of achieving this outcome while altering and adding to the dwelling. Mr Staas supported the proposal but agreed that it would not be ‘integrated’ with the existing dwelling. Mr Moore sought to retain the pyramidical roof form by adding to the rear of the existing dwelling under a lower pitched hipped roof with the eaves at or lower than the eaves of the hipped roof of the front part of the existing dwelling. Mr Moore sketched this proposal in Exhibit 13.

39 The difficulty for the applicant is that on the evidence of Mr Staas the proposed additions at the rear would not be ‘integrated’ with the front part of the heritage listed dwelling or to my mind would not be sympathetic as required by the WDCP. The two-storey pavilion-form would be capped off with a low-pitched roof that from most viewpoints would appear flat and thus the new pavilion would appear cubic in form, with the eaves elevated above the roof of the existing dwelling. As was seen on the site inspection by reference to height staves, the proposed extension would be visible between buildings from Gipps Street and from some viewpoints through the street trees. I accept the evidence of Mr Moore that the view of such a proposal would be detrimental to the streetscape.

40 The difficulty with Mr Moore’s proposal would be that the rear additions would be set below a low-pitched roof, of less than 30 degrees, such that in all probability a two-storey addition at the rear could not be accommodated. This would restrict the floor space of the extension and thus might provide little additional floor space. Thus the applicant’s desire to increase the floor space of the dwelling to cater for a family would be thwarted.

41 There is no requirement under the heritage section of the WDCP to retain the pyramidical roof form, and perhaps there are other proposals that would provide a sympathetic relationship with the existing dwelling and maintain an harmonious streetscape. Some of the residents pointed to the addition at No 12 Gipps Street as a successful example of adding to a heritage dwelling. That design, on land next door to the subject land, would preserve the hipped roof of the front of the dwelling and maintain the valley roof form between adjoining dwellings and would yield additional floor space.

42 In respect of the proposal before the Court, Mr Moore was of the opinion, [Note: Exhibit 2 pp 14-17]:

…the Waverley LEP 1996 and the Council’s DCP, read together with the Statement of Significance for the Heritage Items concerned, provides a clear basis for concluding upon the unsuitability of the proposal. Understanding the significance of the property also makes obvious the direction in which the design of proposals for it can and should go, to avoid adverse heritage impact and conflict with Council’s planning objectives and controls. Council’s decision to refuse the proposal was… appropriate…and the proposal is not acceptable:

· …the proposed alteration will remove the intactness of the subject house as viewed from the street, by introducing an addition which is contrapuntal in form and discordant in character; it will instantly make the house different from its neighbours and through the aggressive dissimilarity of the design, break the cohesion of the group;

· …the additions will be highly and disruptively visible, from Gipps Street and from the back gardens of adjoining properties. Its geometric form, style, materials and siting are not aimed at a sympathetic relationship with the house, acknowledging its heritage values and its design, but inappropriately seek a degree of noticeability and contrast which is inconsistent with the reasons for the heritage listing of the property and its neighbouring houses;

· [t]he integrity of the group is obviously challenged by the nature of the proposal, whose supporting architectural arguments are not substantial in the face of the group’s significance and reasons for heritage listing;

· [referring to the council’s reasons calling up the WDCP clauses], these clauses in the DCP indicate Council’s regard for the sensitivity of these considerations in the design of additions to heritage listed properties. The proposal adopts a design approach, which sets aside the obvious intent of the provisions and does not substantiate the departure.

· [addressing the dwelling house and dual occupancy controls of the WDCP] these are simple invocations with which the proposed development chooses not to conform. The application does not establish why it should be relieved of the requirement to conform to these objectives.

· [addressing public interest] the submissions received by the Council indicate the regard with which the listed group of houses in Gipps Street are held within the community, and vindicate the heritage listing of the properties. They indicate the community understanding and opinion on the ways in which the listed houses should be treated.

· The house at No 14 is readily capable of improvement in a contemporary manner, with the intent of gaining contemporary amenity for the near areas. It can and must do this through employing a design, which avoids cost to the heritage values of the house and its neighbours, or their amenity. It does not have to set out to make itself singular, remarkable, or dominant in its context.

43 Mr Staas stated, [Note: Exhibit B. p 7]:

· [i]n terms of design…the approach [is] acceptable… for this heritage context;

· [i]n terms of visibility in the streetscape… the minor visibility is acceptable;

· [i]n terms of adverse impact on the group as a whole…this proposal does not affect the heritage significance of the item or its relationship to the group;

· the application is both reasonable and acceptable in this circumstance and context and [I] support it wholeheartedly for favourable consideration...

44 Mr Staas in oral evidence agreed there was no visual integration of the proposal with the existing dwelling. He said that it is clearly a contemporary addition. He considered there would be a sympathetic use of brick for the lower storey of the proposal.

45 When asked whether the proposal would satisfy Division H of the WDCP he claimed that the WDCP does not refer to new development and the only section that might be relevant is on pages 13 and 14. If the controls in Section 5.1.1 do apply, they would lead to a ‘pastiche’ approach… he said.

46 Mr Staas was at odds with the views expressed by Mr P Rappoport of Rappoport Pty Limited conservation architects and heritage consultants, who were commissioned by Mr and Mrs J Namey, owners and occupants of No 12 Gipps Street.

47 Mr S Brockwell, barrister, for the council, submitted that in addition to the evidence in support of the council’s case, the evidence of Mr Rappoport is important, and he quoted from it, [Note: Exhibit 3, Tab B, pp 111-112].

· The site is part of a highly intact group of four Federation period dwellings with matching character, form, scale, materials and detailing. The proposed second floor addition would be visible from Gipps Street and in our opinion would intrusively modify the historic streetscape and adversely impact the cogency of the group by the introduction of unsympathetic forms and materials which would make no reference to the historic character of the group or the streetscape;

· The group of heritage-listed dwellings at 8 - 14 Gipps Street, Bronte, follow the natural landform, which slopes gently down to the east towards the ocean. The natural slope makes the dwellings step down in height from west to east, creating a ‘waterfall’ effect along the northern alignment of the street. Despite the setback of the second floor additions, the proposed development would be higher than the original dwelling and would alter the historic step down pattern of the group. Modifications to other dwellings in the group, namely 12 Gipps Street, have been incorporated within the existing roof line to maintain the existing height so that the skyline and views to the place would be conserved. We are of the opinion that the proposed addition would be intrusive to the skyline and as a result would have an adverse impact on views to the place and the streetscape;

· The hipped roof forms of the group of heritage listed, Federation period dwellings at 8 - 14 Gipps Street, Bronte are repetitive. They are important to the unity and character of the group and the visual harmony of the streetscape. In our opinion the proposed sloped roof to the second storey addition would be at, odds with the historic roof form of the group and it would not respond to the north-south alignment of the existing ridgeline. As such the proposal would be intrusive to the aesthetic significance of the place as it would modify views to the place and would be discordant in the streetscape;

· The symmetry of the original dwelling is integral to its aesthetic significance. The proposed addition would be asymmetrical and as such we are of the opinion that it would be intrusive to the significance of the place. Further, the proposal would therefore not achieve a successful balance as advocated in Design Principle 6.3 - Symmetry/ Asymmetry - of the DCP;

· The proposed addition would add a bulky element to the site and sever the continuity of form in the group. The proposed addition would compromise the predominant single-storey scale of the northern alignment of the street and would have an adverse impact on the character of the group, contravening Design Principle 6.1 - Scale and Proportion - of the DCP. Therefore, in our opinion, the proposed addition would have an negative impact on the significance of the place;

· The original Federation period fenestration is consistently of vertical proportions; however the subject proposal would incorporate the use of square, sliding Windows and windows of general horizontal proportions. The existing solid-to-void ratio contributes to the historic character of the place and the streetscape and should be reinterpreted in any proposed modifications to minimise any adverse impacts and to create new relationships between new and old fabric. We are of the opinion that the proposed fenestration does not respect the detailing of the original, heritage listed dwelling and as such would have an adverse impact on the significance of the place;

· Generally, the materials proposed for use in the subject modifications to the dwelling are at odds with the original fabric. We are of the opinion that the adverse impact of additions would be minimised by the use of sympathetic materials which relate to the existing character of the streetscape. Unfortunately sympathetic materials have not been incorporated in the proposed development. Specifically, the existing dwelling is of masonry construction, but the visible portion of the proposed addition would be timber clad. The original terracotta roof tiles have been retained, but metal and timber roof materials have been proposed for use on the additions. In our opinion the use of these uncharacteristic materials would be intrusive to the historic, Federation character of the place and would have an adverse impact on the significance of the site and the group. The proposed development does not, in our opinion, address the issues in. Design Principles 6.6 - Fitting into the context of your street or area - of the DCP.

48 In Brockwell referred to an authority that was later identified as Totem Queens Park Pty Limited v Waverley Council [2004] NSWLEC 712 of Bly C dated 21 December 2004.

49 Mr Green, solicitor for the applicant, submitted that the proposal best retains the historic fabric and addresses the heritage study listing, [Note: Exhibit 3, p 7]. He also called in aid the views of Mr Brady, heritage architect and urban planning adviser to the council, who stated, [Exhibit 3, p 8]:

The proposed works provide a well-resolved contemporary addition in the form of an attached pavilion set to the rear of the existing pyramid roof form. Internal changes to the core residence are limited in impact and remain reversible if carried out as recommended in the applicant’s heritage study.

50 I am not persuaded by the evidence of either Messrs Brady or Staas and consider the application should fail as:

· the proposal would adversely impact upon the significance of the subject heritage item at No 14 Gipps Street and erode the cohesiveness of the group of heritage items of which it forms part;

· the proposal’s unsympathetic design would be visible from Gipps Street, and would have an inappropriate geometric form, architectural style, and siting;

· the unsympathetic design would diminish the integrity of the group of four identical heritage listed items.

· under s 5.1.1, WDCP – ‘Scale and proportion’, the proposal would not provide a scale and massing compatible with the heritage item;

· under s 5.1.2, WDCP – ‘Shape’, the near flat-roofed cubic design for the two-storey addition would not harmonise with the pitched roof of the existing dwelling;

· under s 5.1.4, WDCP – ‘Roofing materials and roof form’, the new roof would not be characteristic of the architectural style of the existing dwelling.

· under the WLEP the proposal would not improve the amenity of the built environment and the residential area;

· under the WLEP the proposal would not be compatible with surrounding development;

· under the WLEP the proposal would not maintain and improve the characteristics of its locality and would not provide for a first floor rear setback that is in line with the prevailing rear setback of the group of which it forms a part;

· under the WDCP the proposal would not minimise visual and other bulk related impacts; and

· under the WDCP the siting of the proposal would not be in visual harmony with surrounding buildings.

51 I prefer the evidence of Messrs Rappoport and Moore, however, I consider that to seek the retention of the pyramid roof form might unreasonably limit the options for extending the dwelling in order to provide the necessary floor space to cater for the needs of the applicants’ growing family. I consider it sufficient to retain the hipped roof form of the front part of the dwelling on the land.

Other matters

52 Mr Fletcher the single-party expert was of the opinion:

…from a general town planning perspective, the impact of the proposal on the streetscape is not such as would warrant rejection of the development application. However, as indicated above, the acceptability of the streetscape and visual impact of the proposal generally is primarily a matter for the heritage experts.

53 Despite this conclusion, I am of the opinion that the rear building line should be struck from the external rear brick walls of Nos 12 and 16 Gipps Street and as a result the proposed extension should be setback further from the rear northern boundary and be more in alignment with the rear of No 12 Gipps Street.

54 For the above reasons, the appeal is dismissed.

Orders
55 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 754/2006 to alter and add to a single-storey heritage dwelling including new kitchen, upper level extension plus construction of an in-ground pool dwelling at Lot 3, DP 308188, being No 14 Gipps Street, Bronte, be refused consent.

3. The exhibits except for Exhibits A, C, E, 5, 6, 7, 8 and 13 are returned.

S J Watts

Commissioner of the Court

sw