Carl Small v City of Canada Bay Council

[2022] NSWLEC 1697

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carl Small v City of Canada Bay Council [2022] NSWLEC 1697

Hearing dates:

6 and 7 October 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits, other than 1, 3, 4, A and H, are returned.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – alterations and additions – heritage item – heritage impacts – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, ss 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Canada Bay Local Environmental Plan 2013, cll 2.2, 5.10. Sch 5, Pt 1

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

City of Canada Bay Development Control Plan 2017

The Burra Charter: the Australia ICOMOS Charter for Places of Cultural Significance, 2013

Category:

Principal judgment

Parties:

Carl Small (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/203577

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA2021/0218 (the DA) by City of Canada Bay Council (the Respondent). The DA sought consent for alterations and additions to an existing dwelling being a local heritage item, located at 41 St Georges Crescent, Drummoyne (the site).

2. At the date of its lodgement on 26 August 2021, the key features of the DA included:

1. The partial demolition of original building fabric at the rear of the existing dwelling.

2. The construction of a new rear extension, detached double car garage and swimming pool.

3. Landscaping works.

4. New stormwater works.

5. Associated conservation works to the existing heritage dwelling.

3. The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 between the parties, which was held on 6 and 7 October 2022. I presided over the conciliation conference and subsequent hearing.

4. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view, limited in the number of participants, and thereafter was conducted in person at Court.

5. At the commencement of the site view, the Court benefited from an oral submission made by a resident of a neighbouring property. This resident offered support for the proposed alterations and additions to the heritage item.

6. Prior to the conciliation conference, on 28 July 2022, the Court had granted leave to the Applicant to rely upon amended plans and documents. This amended DA remained similar in many aspects as the original DA, but incorporated design changes intended to resolve the Respondent’s contentions, and generally formed the basis of discussions at the conciliation conference.

7. During the conciliation conference, the parties were unable to reach agreement to the terms of a decision that would be acceptable to the parties. Accordingly, the conference was terminated and a hearing held forthwith.

8. On 7 October 2022, at the commencement of the second day of the hearing, and with the consent of the Respondent, the Court granted leave to the Applicant to further amend the DA and rely upon further amended plans and documents prepared by James Design Studio Pty Ltd (dated 6 October 2022 and now generally marked as Revision S). The architectural drawings form Exhibit H in these proceedings and form the subject of the appeal.

9. The final amended DA sought to resolve a number of the contentions raised by the Respondent, including amendments to the first floor bedroom configuration to address concerns for cross viewing and privacy, and amendments to the proposed conservatory, which is now intended to remain roofed within the form of the existing dwelling, where earlier iterations of the DA proposed the conservatory be open to the sky.

The site and its context

10. The site is located at 41 St Georges Crescent, Drummoyne and is legally described as Lot 48 in DP 3771.

11. The allotment is regular in shape with an area of approximately 1,066sqm. The site has a primary frontage of 15.74m to St Georges Crescent, and a rear boundary of 15.545m. The common boundary with 43 St Georges Crescent to the northwest is 67.82m in length. The common boundary with 39 St Georges Crescent to the southeast is 67.33m in length.

12. The site is characterised by a moderate topography, rising from St Georges Crescent at the front of the lot towards the rear boundary by approximately 7.7m.

13. The site is occupied by a single-storey Federation-era dwelling that presents to St Georges Crescent with a hipped slate roof and distinctive architectural detailing of the era. The dwelling is situated above a sandstone plinth and served by its original sandstone entry stairs. The dwelling addresses a formal front lawn and garden with sandstone boundary wall to the street.

14. Also on the site is a small original weatherboard carriage house situated close to the rear boundary, which has recently been re-clad and re-roofed. At the rear of the house is a garden, two trees greater than 8m in height (another having recently been lawfully removed) and a natural sandstone rock outcrop.

15. The subject property is situated within a context that has changed in the decades since the existing dwelling was constructed. The current underlying land use zone anticipates medium density residential development and the surrounding buildings are generally consistent with this land use.

16. To the northwest of the site, at 43 St Georges Crescent, is a multi-unit residential building, painted and rendered, containing five dwellings. This building terraces down towards the street address and is sited within approximately 3m of the common side boundary with the subject site. A number of windows from several apartments address this side boundary.

17. To the southeast of the site, at 39 St Georges Crescent, is a three-storey red brick walk-up residential apartment building comprising 12 apartments. This building is also sited approximately 3m from the common side boundary with the subject property. A total of 48 windows address the side boundary with the subject property.

18. To the rear of the site is a three-storey residential apartment building at 28-30 Alexandra Road. This building is situated approximately 4m from the common rear boundary and a rear-facing apartment includes windows, which are oriented across the subject site and towards views of Sydney Harbour to the north-east.

The planning controls

19. The key relevant statutory planning controls and development guides are as follows:

1. EPA Act.

2. State Environmental Planning Policy (Biodiversity and Conservation) 2021.

3. State Environmental Planning Policy (Resilience and Hazards) 2021.

4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Canada Bay Local Environmental Plan 2013 (CBLEP).

6. City of Canada Bay Development Control Plan 2017 (CBDCP).

7. The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013 (Burra Charter).

20. The site is zoned R3 Medium Density Residential under cl 2.2 of the CBLEP. Development for the purpose of a dwelling house, including alterations and additions, is permitted with consent.

21. Pursuant to cl 5.10 of the CBLEP, Heritage conservation, the dwelling situated on the site is identified within Sch 5, Pt 1 as an item of local significance (Item I415). The dwelling is named ‘Tor-Avon’.

History of the Development Application

22. The Respondent’s Statement of Facts and Contentions, filed with the Court on 24 August 2022 and forming Exhibit 1 in these proceedings, sets out the history of the subject DA.

23. The Applicant’s Statement of Facts and Contentions in Reply, filed with the Court on 2 September 2022 and forming Exhibit B in these proceedings clarifies a number of minor points. A concise summary of the relevant history of the DA follows.

24. Development Application DA2021/0218 was lodged with the Respondent by the Applicant on 28 August 2021.

25. The DA was publicly notified from 30 August to 20 September 2021. Four submissions were received, which objected to the DA, with one submission later withdrawn.

26. These submissions raised issues associated with:

1. Potential view loss arising from the height of the proposed development.

2. Noise impacts of demolition and construction.

3. Heritage impacts from first floor additions and excessive scale of the proposal.

27. On 2 December 2021, the Respondent corresponded with the Applicant, advising that the DA results in unacceptable impacts upon the heritage item, and requesting significant design amendments and further specialist input to support the proposal and any amendments. The Respondent also recommended withdrawing the DA due to the substantial nature of the design amendments anticipated.

28. Of particular relevance to this matter, the Respondent’s correspondence identified a number of heritage issues raised by the DA at this time, including:

1. The proposed additions resulting in the loss of original building fabric.

2. The proposed additions being situated partly within the existing footprint of the heritage item when they should be situated behind and beyond the existing dwelling.

3. Proposed modifications to the front garden adversely impacting the setting of the dwelling, including driveway widening, on-site detention and stormwater pits, and the removal of original sandstone steps.

4. The scale of the proposed additions would be acceptable in a pavilion-style addition, but not with the extent of demolition of original heritage fabric proposed.

5. The proposed additions intersecting with the heritage item rather than being a pavilion-style separated from the original dwelling.

6. The arrangement of the proposed addition being complex and unsympathetic to the more regular geometrical form of the original dwelling.

29. On 9 December 2021, the Applicant responded, requesting the Respondent determine the DA with the imposition of conditions of consent and seeking to defer the provision of various specialist reports to prior to the issue of a Construction Certificate.

30. On 10 December 2021, the Respondent advised that the imposition of conditions of consent would not resolve apparent heritage issues or allow comprehensive assessment of the DA. The Respondent reiterated its advice to withdraw the DA.

31. On 20 December 2021, the Applicant submitted amended architectural plans, identified as Revision H and dated 7 December 2021.

32. On 6 January 2022, following an initial review of the Revision H drawings, the Respondent advised the Applicant that the heritage issues had not been resolved and the Respondent would proceed with the determination of the DA.

33. On 16 March 2022, the Respondent refused the DA. The notice of determination, which forms a portion of Exhibit A in these proceedings, notes the following reasons for refusal:

1. The proposed development does not satisfactorily conserve the heritage significance of a heritage item as required by cl 5.10, Heritage conservation, of the CBLEP.

2. The proposed development is unsatisfactory, as it does not comply with the objectives and controls contained within Part D2, Development of heritage items, of the CBDCP, including those set out at Part D2.1 Setting; D2.2 Scale; D2.3 Form and detailing; D2.4 Materials and colours; D2.5 Doors and windows; D2.8 Landscape elements including paving and driveways; and D2.11 Demolition.

3. The proposed development is unsatisfactory, as it does not comply with the objectives and controls contained within Part E Residential Development, of the CBDCP, including those set out at Part E2.1 Topography; E2.4 Visual and acoustic privacy; E2.5 Access to views; E3.5 Building setbacks; E3.7 Private open space; E3.8 Landscaping; and E4.2 Site facilities.

4. The proposed development is unsatisfactory and is likely to adversely impact on the amenity of the adjoining residential property in terms of visual and acoustic privacy, and impacts upon views.

5. The proposed development is unsatisfactory and is likely to adversely impact the natural environment in terms of non-compliant stormwater management system.

6. Given the reasons noted above, the proposal is contrary to the public interest.

The issues

34. The contentions pressed by the Respondent can be found in the Statement of Facts and Contentions forming Exhibit 1 in these proceedings.

35. These contentions are summarised as follows, and at the commencement of the conciliation conference, all remain pressed by the Respondent:

1. The DA does not satisfy CBLEP cl 5.10(1)(b) and (4) as the proposed development would have an adverse impact on the heritage significance of the existing dwelling.

2. The proposal does not satisfy Part D2, Development of heritage items, of the CBDCP.

3. The siting and design of the side-facing first floor balcony and full height glazed doors to the master bedroom will facilitate direct overlooking of the ground and first floor windows of the neighbour at 43 St Georges Crescent.

4. The DA does not satisfy Part E3.8, Landscaping, of the CBDCP and results in a shortfall in the minimum landscaped area.

5. Insufficient information exists to assess heritage impacts given the unclear and contradictory nature of the Applicant’s Schedule of Conservation Works.

6. Insufficient information exists to assess tree protection.

7. Insufficient information exists to assess vehicular access within the site.

8. Insufficient information exists to assess potential stormwater impacts.

The evidence

36. Although the conciliation conference phase of these proceedings did not serve to resolve all the issues raised by the Respondent, it did however successfully narrow the number and nature of these contentions.

37. The joint conferencing of various experts, in concert with design changes implemented within the final amended DA (Exhibit H), has resolved the following contentions.

Contention 3 - Visual and Acoustic Privacy

38. The Court was assisted by experts in planning, who conferred to prepare a joint report. The experts are Mr Robert Chambers (planner) for the Applicant and Ms Ann Bottrell (planner) for the Respondent. Their joint expert report forms Exhibit 3 in these proceedings.

39. The joint report sets out the extent of disagreement between the experts regarding the achievement of adequate visual and acoustic privacy evident in the proposal at that time, being Revision N of the architectural plans.

40. At the commencement of the second day of the hearing, with leave being granted to the Applicant to amend the DA and rely upon the final amended drawings (Revision S, Exhibit H), the planning experts were satisfied that the proposed amendments to the first floor master bedroom and balcony, their orientation, outlook, reduced extent of glazing, proposed use of translucent glazing and balcony screening, were sufficient to resolve contentions for visual and acoustic privacy between the subject site and the immediate neighbour at 43 St Georges Crescent.

Contention 6 - Tree Protection

41. The Court was assisted by arborist experts, who conferred to prepare a joint report. The experts are Mr Glenn Bird (arborist) for the Applicant and Mr David Hart (arborist) for the Respondent. Their joint expert report forms Exhibit 7 in these proceedings.

42. The experts agree that additional clarification provided by the Applicant regarding the proposed landscape design and tree protection measures are adequate to resolve this contention.

Contention 7 - Vehicle Access

43. The Court was assisted by traffic experts, who conferred to prepare a joint report. The experts are Mr Thomas Steal (traffic engineer) for the Applicant and Mr Shankar Pandey (traffic engineer) for the Respondent. Their joint expert report forms Exhibit 2 in these proceedings.

44. The experts agree that provision must be made to allow vehicles to enter and leave the site in a forward direction. Two alternative solutions are canvassed in the report, with the experts agreeing that either would be acceptable. The Revision S plans adopt one of these solutions, being a turntable situated at the entry to the proposed on-site parking area.

Contention 8 - Stormwater

45. The Court was assisted by stormwater experts, who conferred to prepare a joint report. The experts are Mr Bruce Kenny (civil engineer) for the Applicant and Mr Stephen Chow (civil engineer) for the Respondent. Their joint expert report forms Exhibit 6 in these proceedings.

46. The experts agree that the grated drains initially proposed have been removed from the final amended DA and that the supporting Stormwater Management Plans, forming Exhibit J in these proceedings satisfactorily resolves the issues raised in Contention 8.

47. As a consequence of these areas of agreement between the various experts, the remaining live contentions in this matter can now be narrowed and grouped into two topics - landscaping and heritage impacts more generally.

Contentions 4 - Landscaping

48. At the point of termination of the conciliation conference which preceded the contested hearing in this matter, the Respondent re-affirmed its position that the final amended DA continues to fail to satisfy Part E3.8, Landscaping, of the CBDCP and maintains a shortfall in the minimum landscaped area.

49. The parties did agree however that the Court could rely upon the planning experts’ joint report to determine this contention and I will return to the question of landscaping in my findings later in this judgment. Accordingly, the planning experts were not called upon to provide oral evidence.

Contentions 1, 2 and 5 - Heritage Impact and Schedule of Conservation Works

50. The Court was assisted by experts in heritage, who conferred to prepare a joint report. The experts are Mr Paul Rappaport (heritage architect) for the Applicant and Ms Kate Higgins (heritage specialist) for the Respondent. Their joint expert report forms Exhibit 4 in these proceedings.

51. Throughout the joint report, Mr Rappaport and Ms Higgins set out their disagreement in response to Contentions 1, 2 and 5, and generally limited the extent of their agreement to just two relatively minor points:

1. The proposed colour scheme adopted by the DA should be revised with a more sympathetic colour palette and given effect by way of condition of consent.

2. The proposed rainwater sumps should be located at least 150mm from the existing heritage dwelling walls.

52. In her oral evidence, Ms Higgins addressed the final amendments made to the proposal, now described in the Revision S architectural drawings forming Exhibit H. These final amendments include the retention of more of the existing heritage fabric, a design change to retain the existing roof above the proposed conservatory which had previously been open to the sky, and design changes to the orientation and configuration of the first floor master bedroom.

53. Ms Higgins stated her view that the final amended DA had not resolved her concerns for the heritage impacts evident upon the existing dwelling. She noted her concern for a “lack of clarity” within the architectural drawings and a number of discrepancies to the proposed extent of works.

54. Ms Higgins raised her concern that a portion of the existing roof and eaves intended to be retained towards the rear of the house along the side boundary, may eventually require demolition given perceived difficulties in supporting it during demolition.

55. She raised her concern that a proposed box gutter included toward the centre of the existing dwelling presents a risk of failure, potentially causing damage to retained fabric of the existing dwelling. Ms Higgins also noted the proposed location of a number of downpipes serving this box gutter within the roofed conservatory exacerbate the risk of failure and damage to retained heritage fabric.

52. Ms Higgins offered a view that the proposed 3,000 litre rainwater tank may need to be increased in size, and given its location along the side facade of the dwelling, risked obscuring more of the heritage fabric than would otherwise be necessary.

53. Ms Higgins stated that she found the resultant form of the proposed first floor additions to be “fussy” and thereby unsympathetic with the form of the existing dwelling. Additionally, she stated that the intersection between the existing and proposed roof forms is “unclear or inaccurate” as represented in the final amended architectural plans, while the bedroom presents as a “pop-top form” also unsympathetic to the roof form of the existing dwelling.

54. This elaborates on evidence prepared by Ms Higgins set out in the joint report, where under the heading of “Relationship Between Old and New” on p14 she states:

“The proposed addition butts up against the retained section of the existing house, as oppressed to the two-storey addition being a pavilion style addition which would retain the existing with minor modification and have a single storey link between old and new. A pavilion style approach would retain the heritage significant Federation style house while allowing a contemporary addition behind. It would also visually separate old and new. This approach is possible on the site."

59. Also, at p14 of the joint report, Ms Higgins states:

“The irregular stepping form of the proposed addition appears to be given impetus by the floor plans, rather than being a considered response to its relationship with the original Federation house. A thoughtful approach would have been an addition that had a form sympathetic to the regular geometrically resolved forms of the existing house, as could be achieved with an addition that had a simple regular form.”

60. Ms Higgins continued in oral evidence to raise her concerns with the final amended DA, noting an awkward intersection between the proposed first floor bedroom floor and balcony structure, and the existing ceiling of the conservatory below.

61. Finally, Ms Higgins offered her view that - overall - the existing dwelling has a very high degree of heritage integrity, with many extant features remaining in evidence throughout the house. Ms Higgins explained that she did not draw the same distinction between the heritage significance of the front and rear portions of the dwelling based on their differing levels of ornamentation as Mr Rappaport has. In Ms Higgins view, this high degree of integrity evident at the rear of the existing dwelling meant it was of “no less significance” than the front of the dwelling despite its relative lack of ornamentation.

62. Ms Higgins stated that some selective demolition of the existing dwelling may be appropriate, but the degree of heritage intervention proposed in the final amended DA is not justified by the merits of the proposal.

63. This position is also elaborated in the joint report, where under the heading of “Demolition” on p9, Ms Higgins states:

“About of (sic) third of the area of the existing house is proposed to be demolished…”

“The proposed demolition would result in the loss of the original rear wing of the house - a key feature of the Federation period house with a consequent loss of heritage significance. Rear wings of houses contribute to their historic and aesthetic values.”

64. And, at pp11-12 of the joint report, Ms Higgins further states:

“The proposed demolition to create a incongruous courtyard in what is currently an indoor space of an original room would expose internal walls to the weather, and place original building fabric at risk as these walls are internal rather than external cavity walls. The lack of adequate weatherproof (sic) also raises issues of residential amenity and compliance with the National Construction Code.”

“The retention of the rear wing and the rear roof plane would not prevent a new addition being constructed, rather, the addition would be set behind the existing house.”

65. In his oral evidence, Mr Rappoport also addressed the final amendments made to the proposal, described in the Revision S architectural drawings forming Exhibit H. He stated his view that these amendments “represent an improvement” which he characterised as being of “high quality”.

66. Mr Rappoport provided his view that the design of the DA has been guided by the Significance Grading Assessment, which is contained at Appendix B of the joint report. This appendix comprises a drawing, which sets out Mr Rappoport’s assessment of the relative heritage significance of various parts of the existing dwelling as being of high significance, moderate significance, little significance or intrusive.

67. Additionally, Mr Rappoport explained that all proposed heritage conservation works would be undertaken in accordance with a Schedule of Conservation Works, prepared by Mr Rappoport, and which forms a portion of Exhibit E in these proceedings.

68. In response to concerns raised by Ms Higgins for the fussiness of the form of the proposed additions, Mr Rappoport described the final amended DA as having a “dynamism” and noted that the proposal strikes “precisely the balance between new and old” work.

69. Further, Mr Rappoport observed that the semi-detached pavilion-style form advocated by Ms Higgins “doesn’t work because of levels” evident on the site, which would potentially result in the new additions exceeding the maximum height of building control and increasing in their visibility behind the original dwelling when viewed from the street.

70. This point is elaborated within the joint report at p14, where Mr Rappoport states:

“The pavilion issue has been amply discussed and is shown to create a less optimal solution especially given that it would loom higher at the rear due to the upward slope of the land from the primary street.”

71. Responding to Ms Higgins’ concern that the final amended architectural drawings include a number of discrepancies, Mr Rappoport gave his view these could be resolved by way of conditions of consent and be addressed prior to issue of a Construction Certificate.

72. In response to concerns raised for the extent of proposed demolition, Mr Rappoport noted the final amended proposal, which retains more of the existing roof, would achieve greater “legibility” of the relationship between old work and new than the original DA.

73. Similarly, in response to concerns for the potential for the proposed box gutter to fail, Mr Rappoport noted that with good detailing and construction, the box gutter was capable of being adequately resolved.

74. In cross examination, Ms Higgins accepted that her view of the appropriateness (or otherwise) of the DA is based on interpretation of cl 5.10, Heritage conservation, as set out in the CBLEP. She accepted that cl 5.10 itself includes no definition of “conservation” and therefore defaults to the definition set out in the Burra Charter.

75. Mr Higgins accepted that the proposed use of the house would not change as a result of the proposed development, remaining a single dwelling. And to some extent, Ms Higgins accepted that the setting and therefore heritage values of the existing dwelling have been degraded by the proximity and scale of neighbouring residential apartment buildings which now dominate the visual catchment of the existing house. She also noted the house will continue to be perceived - again to some extent - "in the round” when viewed from the street because of the relatively narrow side setbacks between the dwelling and its neighbours.

76. Ms Higgins accepted that the proposed additions would largely be concealed from the street views by the retained existing dwelling, whose primary elevation would not be altered. She did note however that the form of the additions would be visible from some vantage points above and beside the existing dwelling.

77. Ms Higgins accepted that the proposed additions, which comprise a material palette of timber and brick and contrast with the materials of the existing dwelling, create a clear distinction between the old and new work.

78. When it was put to Ms Higgins that the amended proposal - including additions with limited visibility when viewed from the street, with clearly contrasting new work, incorporating the retention of the full extent of the northwestern heritage wall, and with new walls adopting the alignments of existing walls - represents an appropriate design response to the heritage values of the existing dwelling, she demurred stating that she remained concerned for the extent of “spaces and fabric being demolished.”

79. Similarly, when it was put to Ms Higgins that - for these same reasons - a pavilion-style arrangement for additions was not an obligatory design strategy, she accepted this, but restated her view that the current design strategy deployed within the amended DA resulted in too great an intervention into the heritage fabric of the existing dwelling.

80. Ms Higgins accepted that each of the existing dwelling’s features listed in the CBLEP heritage inventory sheet (forming Exhibit L in these proceedings) is proposed to be retained. This physical description states:

“A very good Federation house c.1910 which has remained essentially unaltered. It features a complex slate roof with terracotta ridge capping and roughcast chimneys. The house comprises a double L-plan arrangement with verandah on two sides. The bay window on the corner splay is of special note and has a roughcast gablet above. The large bay below the front gable has a slate hood. Both windows feature coloured upper panes with leadlight skylights. The house is of tuck-pointed brick in two colours with stone foundations, steps and fence. There is an excellent window hood at the side. The timber work to the verandah is attractive though not highly decorative.”

81. Finally, Ms Higgins accepted that she had not undertaken an assessment of heritage significance of the existing dwelling, noting that the onus for such an assessment should properly fall to the Applicant. She also accepted there was no obligation upon the Applicant to carry out the extent of proposed conservation works.

Findings

82. I now move to dismiss the appeal. In deciding this course, I set out my reasons in the following paragraphs.

83. Firstly, it is timely to distill the remaining areas of disagreement into two key planning and heritage issues:

1. Whether the proposed extent of landscape area is adequate given the DA does not meet numeric controls set out in Part E3.8, Landscaping, of the CBDCP and results in a minor shortfall to the minimum landscaped area.

2. Whether the final amended DA meets the test set out at cl 5.10(4) of the CBLEP, the operative provision of which states:

“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.”

Landscaped area (Contention 4)

84. I am satisfied that the final amended DA meets the objectives of Part E3.8, Landscaping, of the CBDCP despite the relatively minor shortfall to the extent of landscaped area provided.

85. I note the planning experts, at pars (57) and (58) of the joint report (Exhibit 3), agree that the extent of shortfall in landscaped area within the DA equates to 2% of the total site area.

86. I then prefer the evidence of Mr Chambers, which notes at par (75) of the joint report:

“The extent of non-compliance on the Respondent’s calculation is very minor (2%). If the side setback area along the south eastern side boundary is included in the calculation of landscaped area it would comply with the 45% control.”

87. The relevant objectives of Part E3.8 of the CBDCP are set out as follows:

O1. To enhance the existing streetscape.

O2. To enhance the quality & amenity of the built form.

O3. To provide privacy and shade.

O4. To minimise the extent of hard paved areas and facilitate rainwater infiltration.

O5. To preserve and enhance native wildlife populations and habitat through appropriate planting of indigenous vegetation.

88. Mr Chambers continues at par (78) of the joint report:

“The proposal is for a predominantly single storey dwelling. The part of the proposal which contains two storeys occupies a relatively small proportion of the dwelling’s footprint. Therefore, flexibility should be provided as the landscaped area for a single storey dwelling is 35% (not 45%) of the site area for a site with an area of 850sqm or more, a lesser requirement with which the proposal readily comprises.”

89. And at par (80) of the joint report, Mr Chambers concludes:

“There is no reasonable necessity for strict adherence in this case to a control which applies to fully 2 storey dwellings, particularly in a circumstance such as this, where the residents of the new dwelling will have access to a relatively large rear garden, a feature notably absent from neighbouring properties.”

90. For the reasons articulated by Mr Chambers, and because the DA proposes to maintain the landscape presentation of the existing dwelling to the street, I am satisfied the amended DA meets the relevant objectives of the CBDCP and that the landscape design proposal is acceptable.

Heritage conservation

91. Notwithstanding having determined that the landscape design proposal is acceptable, I find that the amended DA fails to satisfy the test for heritage conservation set out at cl 5.10 of the CBLEP.

92. The objectives of cl 5.10 relevant to this matter are as follows:

(a) to conserve the environmental heritage of Canada Bay.

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

…

93. I accept the operative provision of cl 5.10(4) requires that the consent authority must consider the effect of the DA upon the heritage significance of the item.

94. In closing for the Applicant, Ms Nurpuri submitted that, when considering the effects of the proposal upon the significance of the item, some “adverse impacts may be evident” but the Court may deem this acceptable if the broader merits of the proposal were able to justify those impacts.

95. Further, Ms Nurpuri submitted that the various aspects which might inform the Court’s consideration of the merits of the DA include:

1. That the proposed works have been guided by the definition of “conservation” set out in the Burra Charter.

2. The item benefits from a local heritage listing rather than a State heritage listing and is a relatively isolated item not set within a heritage conservation area.

3. The existing dwelling has had its setting compromised by the redevelopment of neighbouring sites over recent decades.

4. The heritage significance of the item is largely only appreciable from vantage points within the street, and the key heritage features of the existing dwelling are all proposed to be retained within this visual catchment.

5. The extent of demolition proposed, by the Applicant’s assessment, is acceptable and all exceptional heritage features of the existing dwelling are proposed to be retained.

6. The proposed additions will be readily distinguishable from the original heritage fabric.

7. The reasonable needs and aspirations of the Applicant, as manifest in the DA, should be considered.

96. In his closing submissions for the Respondent, Mr Ward emphasised a number of further aspects which might also inform the Court’s consideration of the merits of the DA including:

1. The need to consider the impacts of the DA on the heritage item holistically rather than in aggregate.

2. That heritage fabric, which in the assessment of the Respondent is of high integrity, is proposed to be demolished and altered.

3. That differences in the level of ornamentation evident between the front and rear portions of the dwelling does not alone determine the fabric’s level of heritage significance.

4. The proposed additions will be visible - to an extent - from vantage points along St Georges Crescent.

5. That the onus falls to the Applicant to prepare an assessment of heritage significance and assessment of heritage impacts, whilst the Respondent’s role is to “consider” these assessments.

6. That the Court should prefer Ms Higgins’ evidence of the unsatisfactory intersection between the existing dwelling and the proposed additions, and the heritage impacts of the resultant extent of demolition.

7. That the nature and number of discrepancies and uncertainty apparent in the amended DA drawings affect both parties and should not be deferred to the Construction Certificate stage for resolution.

8. That the Applicant’s schedule of conservation works appears to include discrepancies, and involves language which is indeterminate and non-binding.

97. As required by cl 5.10(4) of the CBLEP, I have considered the effect of the proposed development on the heritage significance of the heritage item, the evidence of the heritage experts and each of the points submitted by the parties, and find - on balance - that the impacts of the proposed DA upon the heritage significance of the existing dwelling are not justified by the merits of the proposal in the particular circumstance of this matter.

98. The final amended DA therefore fails to adequately achieve a key objective of cl 5.10(1)(b) of the CBLEP, which is to “conserve the heritage significance of heritage items…including associated fabric…”

99. I note that throughout the history of the DA, the Respondent has made its concerns about the impacts of the proposal upon the heritage significance of the existing dwelling known to the Applicant - both at the time the original DA was under assessment, in the reasons for refusal of the original DA, in its Statement of Facts and Contentions (Exhibit 1) accompanying this matter, and during the conciliation conference that preceded the hearing.

100. I further note that while a pavilion-style configuration for alterations and additions is not mandated anywhere within the planning controls or design guidance, it is identified as a siting strategy in the guidance and was offered by the Respondent as a more viable pathway to an approval.

101. The central issue resulting in my determination of this matter lies in the proposed relationship between old and new work and the resultant extent of demolition to the existing dwelling and in making this finding, I prefer the evidence of Ms Higgins for the Respondent.

102. For the reasons set out above, I now dismiss the appeal.

Orders

103. The Court orders that:

1. The appeal is dismissed.

2. The exhibits, other than 1, 3, 4, A and H, are returned.

………………………

M Pullinger

Acting Commissioner of the Court

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Decision last updated: 14 December 2022