Caroli Holdings Pty Ltd v Hunters Hill Council

[2007] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION:

Caroli Holdings Pty Ltd v Hunters Hill Council [2007] NSWLEC 6

PARTIES:

APPLICANT
Caroli Holdings Pty Ltd

RESPONDENT
Hunters Hill Council

FILE NUMBER(S):

10357 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Deemed refusal of demolition of an existing house, erection of a new house and swimming pool, impact on heritage items and conservation area, height, impacts on amenity, overlooking, view sharing, overshadowing, energy efficiency and solar access, private and public domain, streetscape, stormwater drainage, landscaping, vehicular access, size of garage, impact on bulk

LEGISLATION CITED:

Hunters Hill Local Environmental Plan No. 1
Hunters Hill Local Environmental Plan No. 15
Hunters Hill Local Environmental Plan No. 35

DATES OF HEARING:

04/10/2006

 
DATE OF JUDGMENT: 

10 January 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms H Irish, barrister
Instructed by: Mr B Goldsmith, agent
Of: B T Goldsmith Planning Services Pty Ltd

RESPONDENT
Mr J Cole, solicitor
Of: Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

10 January 2007

10357 of 2006 Caroli Holdings Pty Ltd v Hunters Hill Council

JUDGMENT

1 This is a Class 1 Appeal No. 10357 of 2006 between Caroli Holdings Pty Ltd and Hunters Hill Council in regard to the deemed refusal of the demolition of an existing part 1-storey and part 2-storey house with undercroft, and the erection of a new all 3-storey house and swim pool at No. 3 Martha Street, Hunters Hill.

Statement of basic facts
The proposal

2 The new house consists of:

Lower Ground Floor : Guest Room, Rumpus room, shower, laundry, pool and air conditioning plant room and detention tank;

Ground Floor : Large garage area (74 sq m), lobby, dining, living room, kitchen, w.c, study and veranda

First Floor : Three (3) bedrooms main with ensuite, linen, bathroom and large east facing balcony

3 The building will be constructed of random stone to the basement level and part of the west elevation, with the balance being in render with dark paint finish. There is a flat metal deck roof.

The site and locality

4 The subject site is legally described as Lot B in DP 394595 and known as 3 Martha Street, Hunters Hill.

5 The subject property is on the eastern (low) side of Martha Street between Alexandra Street and Ambrose Street. The site generally square in shape with a frontage of 24.4 m and length of 23.3 m, with a site area of 566.7 sq m. A fall of approximately 4 m is exhibited from the front (west) to the rear (east) equating to a site slope of approximately 1:6. Along the rear boundary is a retaining wall about 2 m high. The yard of the subject property is filled level with its top. Along the north boundary is another retaining wall about 1 m high at the east end. The next house uphill has its yard filled level with its top.

6 A 12 -14 m high jacaranda tree is located in the south east corner of the site and a similarly sized jacaranda tree situated within the adjoining property to the south (7 Ambrose Street) which is on or about the common boundary. There is a mature eucalypt also just inside No. 7 near the front boundary adjacent the site.

7 Upon the existing site is situated a part one and part two storey (with store room under) circa 1960-70's weatherboard clad dwelling house with a metal deck part skillion (north - south axis) roof over the 1-storey element and part gable ended (east - west axis) roof over the 2-storey component. The 2-storey component is concentrated toward the southern end of the site.

8 Immediately to the north is located No. 57 Alexandra Street ("The Eagles") a two storey brick heritage listed federation style dwelling house. To the north west is located No. 55 Alexandra Street a single storey sandstone cottage also listed as a heritage item. To the immediate south is situated a circa 1970's - 1980's Mediterranean influenced two storey house, and to the immediate west across Martha Street is a further heritage item, No. 4 Ambrose Street ("Montefalco").

9 Other than the above, the immediate locality and in particular the site is predominantly characterised by a significant clustering of traditional housing stock of both Victorian and Federation periods and style, many of which are listed as heritage items. Martha Street is on the fringe of the Hunters Hill village that is on the corner of Alexandra Avenue and Woolwich Street. The immediate locality is said to display and reflect many of the positive contributors which define the Conservation Area, both in terms of built form and landscape attributes.

10 Approximately 100 m to the west of the site is the Hunters Village neighbourhood shops and approximately 150 m to the east is the Alexandra Street wharf providing access to the Lane Cove River.

11 The area is predominantly low density single dwelling houses with residential flat buildings, aged care facilities and Churches in the area outside of the visual catchment of the site.

The statutory controls

12 Hunters Hill Local Environmental Plan No. 1 (as amended): Relevant clauses are:

Clause 2 - Aims and objectives of the LEP.
Clause 9 - Land use table. The site is zoned Residential 2(a2).
Clause 12 - Minimum size for certain allotments.
Clause 15 - Height
Clause 16A - Garden Area
Clause18A - Foreshore Scenic Protection Area (The site is situated in the FSPA)
Clause 19(3) - Development in the vicinity of Heritage Items
Clause 19A - Conservation Area (the site is situated in a Conservation Area)
Hunters Hill LEP No. 35 - Height standards (Aims and Objectives)
Hunters Hill Development Control Plan No. 15 - Residential Development

13 The Statement of Issues are as follows:

Heritage & Conservation

1. Whether the proposal fails to comply with:

a) the Aims and Objectives of Hunters Hill Local Environmental Plan in relation to clauses 2(a), (b), (b1),(b3);
b) the provisions of clause 19(3) - development in the vicinity of a heritage item;
c) clause 19A - development on land in a conservation area
d) Sections 2 & 3 of DCP 15 - Residential Development
Particulars :
1.1 The subject site is situated within a Heritage Conservation Area and within the immediate vicinity of several items of environmental heritage, including: 1 & 4 Ambrose Street; 55, 57 and 59 Alexandra Street.
1.2 The locality within which the site is situated (excepting for a few anomalies) comprises low density traditional dwelling houses which exhibit the characteristic urban form elements which define/contribute to the uniqueness and character of the Hunters Hill Conservation Area, including the textures, scale, vegetation, materials, and variety of built form as recognised and advocated as design principles under sections 2 & 3 of the DCP 15.
1.3 The proposal as consequence of its bulk, scale, height, massing, unrelieved and unarticulated elevations, strong horizontal form, solidity and flat roof will have an adverse impact on the items of environmental heritage in the [immediate] vicinity having regard to clause 19(3) of the LEP and clause 4.6 of DCP 15 (and the requirement in that clause that new development be designed and assessed in respect of matters outlined in Article 8 of the Burra Charter).
1.4 The proposal is not supported by the Conservation Advisory Panel (CAP) having regard to its role under clause 19B of the LEP, due to its impact on the streetscape.
Height


2. Whether the proposal fails to comply with the height controls under Clause 15 of the Hunters Hill LEP (as amended) in relation to height and number of storeys and hence fails to satisfy the aims and objectives of LEP 35 and cl 7.1.1 of DCP 15.

3. Whether the proposal can be approved in the absence of a SEPP 1 objection.
Particulars
3.1 The proposal exhibits a height of up to 8.6 metres measured from existing natural ground level to the underside of the upper level A.C. Plant Room;
3.2 The proposal measures as three (3) storeys as defined as noted in Section A-A including the AC Plant Room constitutes a storey.
3.3 Notwithstanding technical compliance or otherwise, the proposal reads as a 3 - 4 storey building contrary to clause 7.1.3
3.4 The proposal when viewed from the street and adjoining properties to the east and south will have an imposing impact due to its height and elevation and exaggerated by the number of storeys.
3.5 The non-compliances attribute to loss of views, and impacts. on privacy and solar access of adjoining properties.
3.6 The location of the air conditioning plant is unusual and unwarranted for a single dwelling house particularly where other more suitable locations are available.

Amenity

4. The subject proposal will have adverse impacts on the amenity of the properties immediately surrounding in relation to visual privacy, contrary to clause 7.5 of DCP 15.
5. The proposed dwellings will be adversely impacted in relation to overlooking by the property immediately adjoining to the north, south and east contrary to clause 7.5 of DCP 15.
6. Whether the proposal satisfies the view sharing principles under DCP 15 and the planning principles advocated in Tenacity Consulting v Warringah Council.
7. The proposal does not demonstrate that it has been suitably designed to minimise overshadowing of adjoining properties as required by c7.4.2 of DCP 15.
8. The applicant has failed to demonstrate that the proposal has been designed to maximise energy efficiency and solar access to principal living areas and principal outdoor ground level open space areas. Accordingly, the proposal is contrary to clause 3.2 (c)(ii), (iii) and (v) and clause 7.4.1 objectives (a) and (b) and 7.4.2 of DCP 15.
Streetscape

9. The proposal has an adverse impact in relation to the streetscape and townscape and does not fit in contextually as a good neighbour having regard to its foreign design which disrespects the existing positive characteristics of the locality. As such the building is out of character and unsympathetic within its setting amongst traditional housing stock.
10. The proposal fails to provide an appropriate interface between the private and public domain, with the west elevation turning its back to the street, in lieu providing little fenestration for causal surveillance of the street and dominating its streetscape presentation with solid walls and fencing.
11. Accordingly, the proposal does not comply with clause 3.1 objectives (b) and (d), clause 3.2 (a)(i), 3.2 (b), 3.2(c)(v), (viii), (ix), clause 3.3(a), and section 9 fencing. See also issues raised under "Heritage & Conservation" above.

Drainage

12. Whether the proposed stormwater drainage system is satisfactory and/or whether an easement should be obtained through adjoining properties.
Particulars
12.1 The applicant has not provided evidence to demonstrate adequate attempts to acquire an easement through down stream properties which is the preferred means of stormwater disposal.
12.2 Whether the location of the absorption trench is satisfactory as it may result in adverse impacts and nuisance to the adjoining property.
12.3 The applicant has failed to provide a geotechnical report to confirm that the site conditions are conducive to an effective absorption trench system
12.4 No rain water tanks for on site re-use are provided.

Landscaping

13. Whether the proposed landscape treatment is satisfactory having regard to the provisions of Clause 7.3 of DCP 15.
Particulars
13.1 Whether the existing jacaranda tree in the rear yard should be removed as it contributes to the amenity and character of the locality.
13.2 Whether it can be reasonably concluded that the jacaranda on the adjoining property to the south will not be adversely affected by the proposed development.
13.3 Insufficient canopy trees are proposed as required by clause 7.3.2 of DCP 15.


Carparking & Access

14. Whether the proposed vehicular access is satisfactory
15. Whether the design of the garage allows for the parking of two vehicles and their adequate manoeuvring into and out the car spaces

Particulars

15.1 The applicant has not provided a 1:20 long section from the centre line of the road to the garage floor level to demonstrate that suitable grades and transitions are provided in accordance with council's Policy and Australian Standard. In this regard a maximum 1:8 grade is required for the length of the driveway.
15.2 The carpark design is unacceptable as it requires multiple manoeuvres to enter and exit the carapaces and relies only one of the spaces being free at all times.

Objections

16. Matters raised by objectors including the Hunters Hill Trust.

14 The respondent’s evidence was heard from:

• Mr J Vescio, town planner for the council
• Ms L Thomas & Mr R Dubler, objectors of No. 4 Ambrose Street
• Ms R Christie, objector of No. 55 Alexandra Avenue
• Dr & Mrs Savvides, objectors of No. 57 Alexandra Avenue
• Mr & Mrs O’toole objectors of No. 59B Alexandra Avenue

15 Mrs J Beck of No.59 Alexandra Avenue had lodged an objection but was overseas at the time of the hearing.

16 The applicant’s evidence was heard from :

• Mr B. T. Goldsmith, consultant town planner
• A tree report by Mr L Smith arborist
• A drainage report by Mr D Wignell.

17 The parties had agreed that joint experts should be appointed by the Court, they were:

• Mr S Davies, consultant town planner and heritage specialist
• Mr CYoung, town planner and traffic engineer
The evidence

18 At the start of the hearing amended plans were shown that deleted the plant room referred to in the Issues that would have constituted a 4th level. These amended plans became Exhibit A, the subject plans before me.

19 The applicant had also asked the experts, prior to the hearing, to look at alternate building envelopes, in case, at the end of the hearing I was not in favour of the proposal in Exhibit A. This, the applicant said could be useful in obtaining some guidance for another design.

20 The respondent objected on the basis of the case being prepared on Exhibit A and earlier drawings before that with the plant room, not some other envelope.

21 The experts of both parties had met and discussed the alternate envelope. I said any new design may be so different that a fresh DA would be needed. Any observation I might make about an alternate envelope could not indicate any approval by council or the Court of another design. The applicant said submissions would be made on the alternate envelope, and I agreed to allow limited concurrent evidence from the experts to assist in clarifying evidence on the subject proposal. The hand annotated copies of the subject plans with a building envelope in red colour became Exhibit J.

22 The applicant claimed the existing house is part 3-storey due to a laundry, toilet and storerooms in the undercroft on the downhill side of the site. This can only be peripheral to a case when a new house is being proposed, the current controls and statutes must apply. The applicant also claims the new house is 2-storey because the lowest floor is to be excavated below existing ground level which technically determines the height and number of storeys of a building under the controls. The third level would only be a “storey” under the statute if it projected more than 1.4 m above the existing ground level before this development.

23 It appeared during the hearing that these submissions related to some of the objectors’ concerns about view loss of the district views in one case, and district/harbour bridge/city skyline views in the other.

24 The part of the existing house that is said to be 3-storeys is out of the view line from the objectors’ houses. They get their views over the 1-storey part of the existing house.

25 The proposal is as high for its full width, as the so-called 3-storey part of the existing house and would block the views from two neighbours’ houses and their outside entertainment areas. They are No. 55 Alexandra Street and No. 4 Ambrose Street both of which are across the other side of Martha Street from the site. Both of these properties are heritage item houses and properties under the statutes.

26 The immediate neighbour to the north, No. 57 Alexandra, and the next neighbour on the north-east corner of the subject property, at No. 59 Alexandra are also heritage item houses.

27 The neighbour to the north at No. 57 has their kitchen/family room and a shaded yard area they use in summer facing the north elevation of the proposal. These areas are used daily because of their function, and because they are the positions from which district views are obtained. The bulk of No. 59 prevents views to the east from No. 57, and there are no views to the north or west. Number 57 also objected to the increased bulk of the proposal compared to the existing, the lack of sympathetic design with the heritage item, and the wide opening in the garage of the proposal adjoining the shaded yard area. The proposal has a very large garage for 2 cars. The size is said to allow cars to be turned to exit. The respondent’s evidence showed that for a 85%-ile car to turn it had to reverse into the side boundary setback through the opening in the garage wall. Also, if two cars are in the garage Mr Young said one of them would have to reverse out into the street to allow the other one to manoeuvre to turn inside the garage. Mr Goldsmith agreed either that happens or one of the cars has to reverse in from the street in the first place. The objector said noise and fumes must result from all this manoeuvring.

28 Number 59 has a large rear deck at its kitchen/family room level and a solarium that is used daily for similar reasons to No. 57. Being on the eastern side, they objected to overlooking from the new upper storey of the proposal that gave a vantage point not available from the existing house. Also they objected to the lack of sympathetic design to the heritage item. There is an amount of mutual overlooking from various nearby homes to No. 59’s elevated rear deck, I could not give that objection significant weight. On the heritage issue some weight is justified. And I shall refer to that later.

29 Behind No. 59 is a battleaxe lot with a 1960-70’s house on it. Number 59A is directly adjoining the subject site on the downhill side. There is a retaining wall about 2 m high on the subject land with a chain mesh fence on it. The chain mesh has vines growing in it but the leaf cover still enables dappled sunlight through to the west side setback and windows of No. 59A. The applicant proposes to make the wall structurally stable and raise it higher with a solid wall for privacy. The owners of No. 59A object to that saying the west windows are the kitchen and family windows and the side setback is a courtyard that is used and they need the afternoon sun to them.

30 The applicant said it is prepared just to stabilise the existing wall, and keep the chain mesh fence with hedge vegetation. The upper east facing decks of the proposal are said to give some overlooking of No. 59A. The applicant said it would be screened by planter boxes on the decks that would keep persons back behind the planter and vegetation, so sight lines would not be possible.

31 In observing the situation, the side setback courtyard of No. 59A is so narrow that I would expect the 2 m high retaining wall and hedge would prevent overlooking from the proposal to the same extent as now. The existing situation seems to be satisfactory to the objectors. One could not retain the dappled sunlight from afternoon sun and have total privacy in No. 59A. Being oriented north-south, the courtyard of No. 59A has the benefit of reflected morning sun off the retaining wall and vegetation, and direct sun during the midday period. Also No. 59A has pleasant gardens and a deck off the living room on the eastern side with district views that would get sun most of the day. I could not give No. 59A’s objection on solar access and privacy significant weight.

32 Some concern may be justified on stormwater drainage disposal as the subject intends a distribution trench uphill of the retaining wall. Rainwater soaking underground must come through the retaining wall to some extent. However, that matter is overtaken by other evidence.

33 It is of some relevance that when the experts considered the number of storeys and the height compliance issues they all came to the conclusion that the extent to which they might be applied would be in regard to retaining the views from the heritage items and the impact of the bulk of the proposal on the settings of the heritage items, on the streetscape and on the character of the conservation area.

34 The applicant submitted that Tenacity v Warringah Council [2004] NSWLEC140 would not apply in this case as Hunters Hill controls had its own view loss controls. To some extent I agree with this, as the Court principles are intended only to apply where a council’s statutes and controls do not cover a particular aspect, or where they may not be clear in their intent.

35 The primary objective of the Hunters hill control is: “to ensure that the maximum number of residents enjoy a view by avoiding the monopolising of a view by existing dwellings and undue obstruction of views by new dwellings or additions”.

36 In this case that objective is supplemented by the heritage item legislation:

Development in the vicinity of a heritage item; Clause 19(3) states that ` The Council shall not grant consent to an application to carry out development on land in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the heritage significance of the item and its setting'.

37 Mr Davies said this particular site in Martha Street provides an opportunity for a new dwelling. The existing dwelling on the site is not a heritage item and does not reach the threshold for listing in the future. The site was created from the subdivision of the site to the north and although small in area compared to its neighbours it has housed a dwelling of an age much younger than the principal period of development of the area.

38 Mr Davies did not consider the style of the dwelling to be too contemporary, but he did have concerns about its impact in terms of location and size. He said the objections to the proposal, including the letter from heritage expert Robert Moore, and the report from the Conservation Advisory Panel of council add to the debate in terms of the potential impact on the heritage items in the vicinity with regard to the bulk and size of the proposal.

39 The letter from Ms Christie at No. 55 is particularly cogent in terms of the way the garaging adds to the bulk of the building. This coincides with Mr Davies concern about the size of the dwelling and its impact on the streetscape.

40 The garage is such a large part of the dwelling that the re-organisation of the parking could reduce the amount of internal accommodation or assist in its reallocation. A two car garage in a traditional relationship to the street would allow much of the accommodation currently housed on the upper floor to be housed on the ground floor. This could bring the volume of the dwelling down considerably.

41 Mr Davies said the A.C. plant room on the roof level has been removed in the amended plans of August 2006 and the plant is now located in the basement, but the current configuration, site coverage and car parking layout adversely affects the quality of the conservation area and the setting and views from the local heritage items.

42 Mr Davies did not have an objection, in principle, to a two/three storey building on the site except how it is affected by the heritage and streetscape issues and Clause 15 of the HHLEP that does not permit the erection of a building on the site containing more than 2 storeys. The crux of the issues, in his opinion is related to views and the configuration of landscaped open space, and the notion of 'setting'.

43 Mr Davies supports the notion put by Mr Moore that scale and bulk can affect the appreciation of more contemporary designs in historic precincts and the more dominating the proposal the more the difference in character is emphasised. He agrees with Mr Moore that the dwelling will appear bulky in this context, notwithstanding the compliance with regard to set backs.

44 Clause 19A - Development on Land in a Conservation Area specifies:

(1) Consent of Council is required to demolish and erect a dwelling.

(2) The Council shall not grant consent to an application to carry out development on land within a conservation area unless it has made an assessment of the extent to which the carrying out of the development in accordance with the consent would affect the heritage significance of the conservation area.

45 The proposed dwelling does not appear to comply with the controls for the area. Mr Davies said these matters are outlined in Mr Young’s evidence, and support the opinion that the dwelling is excessively bulky.

46 A dwelling of lesser scale and set back further from the adjoining dwellings would comply better with the objectives for Hunters Hill. The dwelling does step up on the north, south and east however it will present in the streetscape as very wall like, notwithstanding these setbacks. The closeness to the street alignment emphasises its mass. The replacement of the front fence with something more transparent may alleviate some of this but it would not solve all the issues.

47 A two storey/split three level dwelling (levels not storeys as defined), that has regard to view sharing and heritage setting and conservation of the Hunters Hill character may provide a satisfactory outcome. The aim is to maintain the concept of a building in the landscape and Mr Davies said this will not be achieved by the present proposal. He said that an envelope should be developed that will guide the future parameters for a dwelling on the site.

48 Other matters of the applicable legislation that he considered give further guidance:

Cl 19A(3) The Council shall not grant consent to such an application, being a application to erect a new building or to alter the exterior of an existing building, unless the council has made an assessment of ­
(a) the pitch and form of the roof

49 The area generally has pitched roofs for the existing listed and non-listed buildings. The original plans had a pitch to the roof of the plant room however this has been removed in the amended drawings. Mr Davies does not have an aversion to flat roofs in conservation areas but they should be considered in relation to context. In this situation with clearly later dwellings in a short streetscape the use of a flat or skillion roof may be appropriate. The heritage items of the 19th and early 20thC are the dominant elements. Also in this case the use of a flat/skillion roof would assist the lowering of the roof profile to assist in view sharing. Mr Davies saw this to be more important than the requirement for a traditional pitched roof.

Cl 19A(3) (b) The style, size, proportion and position of the openings for windows and doors;

(c) Whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the conservation area.

50 Mr Davies said these components of the proposal are not inappropriate for the subject location, except for the street fencing.

Conclusions

51 Sections 2 & 3 of DCP 15- Residential development DCP 15 states in 2.1:

The Character of Hunters Hill' that the area displays "garden suburb" characteristics in line with the Town planning movement of the early part of this century. This tradition has continued with notable residences in the history of Australian domestic architecture being built within the municipality in continuing decades and recent times.

52 Section 2.2 Urban Form Characteristics refers to:

the `forest like setting, generous soft landscaped front yards generally containing substantial planting, significant private tree and vegetation planting and that views to and from the water are retained

53 I agree with Mr Davies that the constraints on the subject lot reveal the proposed building should be less dominant and have more area available for landscaping, and have less impact on the views to the water and local heritage items and tree cover from the neighbouring sites. The proposed dwelling itself will have unimpeded views to the water and the city but in its present form will impede that enjoyment for local heritage items. The affect on the neighbouring properties has been confirmed by the height poles seen on site and the photographic images.

54 The dwellings that are being impacted on are heritage items that contribute to the character of Hunters Hill. They are stone and brick dwellings of the principal periods of development of the area and contribute to the character of the place. It is considered that the impact is so great on their setting that a new application is required.

55 In regard to the envelope outlined in red in Exhibit J the cross examination of the experts showed that essentially it maintained the various heights and envelopes of the components of the existing building.

56 The enjoyment of heritage dwellings and the care and management of their future is often associated with the context in which they are located. Views to and from the heritage items and the leafy context within the area are regarded highly, both by the occupants, and by the public in the maintenance of the setting. In this sense the “setting” of Hunters Hill extends under the legislation to the individual heritage items and the overall presentation of the character of the conservation area.

57 The effects on the views from No.4 Ambrose St are considered by Mr Davies and Mr Young to be devastating, and on No.55 to be severe. The applicant said that they failed to account for views available from the upper floor of No.4 that are unaffected. I saw them on the visit to the site and the heritage items and it is obvious the primary views from the heritage items are obtained from the ground level living rooms and yard areas that are part of the items.

58 The impacts on both these views illustrate the open nature of the local character, and the settings of the heritage items with the leafy tree canopies and district views, including St Peter Chancel Church from No. 55. Being able to see several heritage items, both near and afar, from individual vantage points including from the harbour is one of the characteristics of Hunters Hill.

59 Mr Davies said, the existing dwelling sits within the landscape and in this regard accords with the principles of the DCP.

60 I noted in this regard that both of heritage items No. 55 and No. 4 had extensions designed in sympathy with the architecture of each item. The major principle of each design being that the additions are 1-storey high so that the original heritage item remains dominant, and the location of the extensions minimises their visibility from the street and enables vegetation that has been planted to retain the leafy, “houses set in gardens” character of Hunters Hill.

61 The proposal by comparison is the antithesis of this with a high stone wall, and blank walls to the street and little space for vegetation. The allotment is small by comparison to many around it, and the size of the proposed house and its location forestall achievement of the objectives. Whilst Mr Davies says he is not opposed to a flat roof in this situation where it:

• assists the heritage items to remain dominant in the streetscape, as well as
• retaining views to and from the heritage items, and

• view sharing for the neighbours;

62 It is my opinion that the flat roof is really a means of maximising the envelope of the building on a small site.

63 The small size of the allotment is a constraint in the achievement of the objectives of the legislation and controls, not a justification for development to the maxima. The maxima are not “as of right”, they are only permissible if the objectives are achieved.

64 That the proposed dwelling is too high and too wide in the streetscape. The building should present more as a building in the landscape and should have regard to the views both distant and local from the heritage items. The views include views of the City and harbour bridge from No. 4 Ambrose Street and the St Peter Chancel Church from 55 Alexandra Street.

65 The proposal before me should be refused. The applicant’s submission that my decision, if unfavourable, should be deferred until an amended plan is prepared in compliance with Exhibit J is not granted. Exhibit J is such a preliminary document that it could not be the basis of any decision, and even if it was acceptable, the resulting design would be so different to the subject proposal that a fresh application would be necessary.

66 Therefore the orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits A, D, H, 5 and 6.

___________________

K G Hoffman
Commissioner of the Court
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