Chisholm v Ku-ring-gai Council

[2019] NSWLEC 1062

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chisholm v Ku-ring-gai Council [2019] NSWLEC 1062
Hearing dates:	18 December 2018
Date of orders:	19 February 2019
Decision date:	19 February 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development application No. 0021/18 for alterations and additions to an existing detached dwelling at 5 Matong Street Gordon is refused. (3) The exhibits are returned with the exception of Exhibits 1, A, B and C.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to a dwelling house; heritage conservation area; balancing heritage conservation and other planning objectives
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ku-ring-gai Local Environmental Plan 2015
Cases Cited:	Barkl v Ku-ring-gai Council [2015] NSWLEC 1076
Texts Cited:	Australia ICOMOS Practice Note – Burra Charter Article 22-New Work Burra Charter The Australia ICOMOS Charter for Places of Cultural Significance 2013 Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	Virginia Chisholm (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: A Hudson, Wilshire Webb Staunton Beattie   Other: R Chisholm, authorised agent (Applicant)
File Number(s):	2018/182096
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal, falling within Class 1 of the Court’s jurisdiction, is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ku-ring-gai Council (Council) of Development Application No. 0021/18 (DA). The DA is for alterations and additions to an existing detached dwelling at 5 Matong Street Gordon, also identified as Lot 8 in DP13842 (site).

2. The appeal was subject to conciliation on 18 December 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and the matter proceeded forthwith to a hearing. The parties consented to the admission to the hearing of evidence given during the conciliation conference.

3. I generally rely on Council’s Statement of Facts and Contentions (Exhibit 1) for the uncontested details on the site and its context, and the proposal description, as outlined below.

Site and Context

4. The site is rectangular in shape with an 18.315m wide street frontage and a total area of 790.7m². It slopes away from the street frontage to the west with a difference of approximately 3.3m in levels from east to west.

5. The site accommodates a detached dwelling, partially split level to the rear and an in-ground backyard swimming pool. An attached garage is located along the southern side of the building.

6. The local setting, including its heritage significance, is a matter of contention in the hearing and will be considered below. Suffice to say here, the setting is low density residential with predominantly single and two storey dwelling houses and leafy surrounds. Gordon Station is some 1km to the west.

Proposal

7. The development application proposes the following:

1. new shower room adjacent to the northern side elevation of the ground floor

2. changes to an existing bathroom, and conversion of a bedroom to a study at the ground floor level

3. introduction of a first floor level (and a stairwell linking the two levels) containing two bedrooms and a bathroom - partially built into the roofline but also protruding out considerably at the eastern elevation.

Hearing

8. The hearing commenced with an on-site view. Mr Chisholm and Mr Hudson explained the proposal and there was the opportunity to view the site and walk along some of the surrounding streets to observe the built form setting, including listed heritage items. I was also invited by the parties to drive a little further afield for the same purpose which I did.

9. I should mention here that Mr Chisholm brought forward two further alteration “options” which would, were leave to be granted, modify the class 1 application before the Court. Mr Chisholm informally queried Council as to whether it might be satisfied with either of these options. When Council responded in the negative, Mr Chisholm also made clear that he would prefer for the Court to consider the original Class 1 plans. That is, Mr Chisholm did not seek leave to rely on either of these two redesign options in the hearing.

Issue

10. There is only one issue arising in this application. Council’s contention is that the proposal results in unacceptable impacts on the heritage conservation area and fails to satisfy the heritage conservation provisions of the Ku-ring-gai Local Environmental Plan 2015 (LEP) as well as Ku-ring-gai Development Control Plan (DCP).

Statutory setting, having particular regard to housing and heritage conservation considerations

11. The site is located within the R2 - Low Density Residential zone under the LEP. There is no dispute that the proposal is permissible. The site is also located within the 'Love Estate, Thorne Grant Conservation Area' (HCA) under the LEP.

12. The R2 Zone objectives are as follows:

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

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

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

13. The LEP clause of particular pertinence to heritage conservation is reproduced, relevantly, below:

5.10 Heritage Conservation

...

(1) Objectives

The objectives of this clause are as follows:

(a)  to conserve the environmental heritage of Ku-ring-gai,

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

...

(4) Effect of proposed development on heritage significance

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

14. Part 19 of the DCP is concerned with heritage conservation. Some inclusions to note here are as follows:

1. Within the introduction to Part 19:

The heritage controls in this Part of the Ku-ring-gai DCP aim to:

i) retain, conserve and enhance the Heritage Items, HCAs and their associated settings;

ii) ensure the heritage significance, streetscape and landscape character of HCAs are maintained;

iii) ensure alterations and additions to Heritage Items and within HCAs respect those buildings and do not compromise the significance and character of the individual Heritage Items or the HCAs;

...

2. And:

“Where there is inconsistency between the controls in Part 19 and controls in other parts of this DCP, the controls in Part 19 prevail. This part provides guidance to meet the objectives in the KLEP 2015.”

Evidence

15. Ms L Goldstein provided an expert report on the contentions and heritage conservation evidence for the Council, and oral evidence in the hearing.

16. The applicant did not provide expert evidence in the hearing.

17. Ms Goldstein submitted that the proposed additions would present as two storeys to the street, losing the current single storey scale in the immediate setting, which was seen to be characteristic of the wider HCA. When going to the particulars, Ms Goldstein indicated:

“The proposed first floor addition would change the entire character of the property and would have a major impact on the streetscape of Matong Street and the contributory nature of this property to the wider HCA.

The proposed first floor addition is too wide and high and does not respect the existing intact bungalow.

The proposed ground floor ensuite addition and first floor addition would have impacts on the nearby heritage item, primarily as it would tend to reduce its visual strength in the streetscape and HCA as the heritage item is a much grander building located on a prominent high point.”

18. It was suggested, the proposal would be inconsistent with the LEP’s heritage conservation objectives at cl 5.10 of the LEP, and the provisions at 19C.1 of the DCP. Objectives 3 and 4 of this section were cited, in particular:

Objectives

...

3 To ensure that additions or changes to contributory properties within HCAs respect their original, built form, architectural style and character.

4 To ensure the visual impact of new work is minimised through appropriate design, detail, proportion, scale and massing.

19. Ms Goldstein noted that while there were a number of two storey residences in Matong Street these had all been approved before the current heritage controls were in place.

20. It was acknowledged that the proposed design would “retain some of the prominent Inter-War elements of the front porch hipped projection”. But the proposal was seen to be bulky and highly visible in the street and at odds with the LEP and DCP objectives, resulting in unacceptable adverse heritage impacts. As put by Ms Goldstein, after quoting a section of the HCA’s statement of significance:

“The Love Estate Thorne Grant HCA generally has high aesthetic significance for the high proportion of quality houses and even though there have been some unsympathetic changes to some houses in Matong Street it is important to adhere to the present DCP controls in order to retain the significance of the existing fabric of the houses and gardens in the street.”

21. Ms Goldstein quoted from the “Australia ICOMOS Practice Note for Burra Charter Article 22” which was indicated to state:

“An important factor in the success of new work is the quality and sensitivity of the design response. New work should respect the context, strength, scale and character of the original and should not overpower it. The key to success is carefully considered design that respects and supports the significance of the place.

22. A heritage impact statement (HIS) formed part of the DA material originally lodged with Council and was included at Exhibit B. This material cannot be considered as having the same standing as expert evidence as it was not provided as sworn evidence. Nor was it subject to cross examination. The HIS was prepared by R Lee. It is indicated the author is a registered architect and has a graduate diploma in heritage conservation. The HIS found the proposal would “improve the accommodation and facilities of the home” and would “not impact on the property within the context of the surrounding heritage area”. The HIS found that (p15):

“The form and materials to be used on the proposed structure are drawn from and reflect architectural elements that characterise the existing building as well as nearby buildings.

The presentation of the building within the streetscape of Matong Street will remain largely unaltered. Its presentation to neighbouring properties will be similar to and consistent with the neighbouring residential buildings.”

Submissions

23. Mr Chisholm submitted two bundles of documents, in particular, to establish the case he wished to put on behalf of the applicant. Mr Chisholm’s submissions might be summarised as follows:

1. The proponent requires more room in the home to meet changing family needs.

2. Of the 15 properties either facing, or enjoying access to, Matong Street seven have significant first floor extensions or are two storey properties.

3. The DCP allows additions within the HCA that “match the scale and form of existing buildings within the streetscape”. Reference was made to DCP cl 5.10 “Control (3)” (which I return to below).

4. The proposal would satisfactorily retain the original character of the building while appropriately “matching” existing buildings within the streetscape. The HIS was referenced extensively in support of this position.

5. There are no objections from local residents.

24. In addition, Barkl v Ku-ring-gai Council [2015] NSWLEC 1076 (“Barkl”) was referenced by Mr Chisholm as an authority in the consideration of alterations and additions to a property within a heritage conservation area. In this case, O’Neill C granted approval after Council (as it happens the same Council a party to the current proceedings) had refused such an application. I return to Barkl below.

25. A procedural point was made when Mr Chisholm made reference to a memo of advice from Ms Goldstein, as a heritage advisor to Council planning officers in regard to the assessment of the DA, dated 12 April 2018. This memo was also in Council’s bundle (Exhibit 2) under Tab 3. In a section of the memo titled “Comments on Controls”, Mr Chisholm notes that the memo (in regard to the point of interest here) indicates, what might be normally read as a direct quote from the DCP controls, as follows:

“19C.1 Local Character and Streetscape

Built form

1. Alterations and additions are to respect the heritage significance and predominant architectural character of the HCA

2. Single storey retained

3. Proposed works to contributory buildings are to retain the original character of the building.”

26. Mr Chisholm’s submission was that the memo was incomplete or misleading. In particular, it did not cite the controls which applied in areas where there is a mix of one and two storey development. The reference control (“Control (3)” in the DCP’s Section 19C.1) provides that:

“Where an HCA is characterised by a mix of one and two storey buildings, proposed works to contributory properties are to:

i) retain the original character of a building;

ii) match the scale and forms of the existing buildings within the streetscape.”

27. Council’s submissions essentially followed the evidence of Ms Goldstein.

Findings

Merits considerations in evaluating alterations and additions to a property within a heritage conservation area

28. While the hearing centred on the issue of heritage conservation, there is a requirement for a consent authority to, relevantly, take into consideration the entirety of s 4.15(1) of the EPA Act when evaluating a DA such as that before the Court here.

29. Heritage is a prominent consideration in the LEP. But it is notable that the first nominated zone objective for the LEP’s R2 zone is that of “(providing) for the housing needs of the community within a low density residential environment”. According to the applicant, the proposal is aiming to provide for the housing needs of particular members of the community. I accept this point, and in that sense the proposal is consistent with that particular zone objective.

30. I also have particular regard to the third nominated zone objective, which is concerned with “(providing) for housing that is compatible with the existing environmental and built character of Ku-ring-gai.”

31. Given the site is in a HCA, I then need to take particular note of heritage provisions at cl 5.10 of the LEP (see [13]). This clause has a direct objective of conserving the local government area’s environmental heritage, including HCAs. Among other things cl 5.10 requires me to “consider the effect of the proposed development on the heritage significance (of this HCA)”.

32. It is generally useful to rely on more generalised interpretive documentation prepared by those with expertise, such as in this case Council’s DCP; and expert evidence on the particulars of the case, to assist the Court in the consideration of this “effect”. The DCP also of course requires its own direct consideration under s 4.15(1) of the EPA Act. Section 19C of the DCP is of interest here. The most pertinent controls are at Control 3 at Section 19C.1, and the parties bring different interpretations of this control.

Three principal questions

33. The above draws me to the conclusion that there are three principal questions to be considered here. First, is the interpretation of the DCP provision at Control 3 at Section 19C.1. Second, is the question of satisfaction of this control. Third, is then the question of balancing heritage considerations with the wider evaluation requirements of s 4.15(1) of the EPA Act.

34. Considering the first question, the control provides as follows:

“Where an HCA is characterised by a mix of one and two storey buildings, proposed works to contributory properties are to:

i) retain the original character of a building;

ii) match the scale and forms of the existing buildings within the streetscape.”

35. Two figures follow the text. One representing “good design”, and showing any second storey development within and behind the roof line – ie largely presenting as single storey. The other representing “poor design”, and showing entirely new roof lines for the additional storey. See below.

36. So as far as Matong Street is concerned, there is something of a misalignment between the words and the figures in this section of the DCP. That is, two storey development of the type which the DCP would categorise as “poor design” in its Figure 19C.1-3 is quite characteristic. That is to say, there is no dispute in the evidence that the existing streetscape in Matong Street in the site locality is mixed single and two storey.

37. Ms Goldstein however, puts some considerable weight on the fact that very much, if not all, of the two storey development in Matong Street was approved before the current LEP was gazetted, and thus, its more powerful heritage controls were in place.

38. When questioned on the apparent inconsistency (between the text’s opening up to “matching” existing scale and forms, and the reference to good and bad design in the figures), Ms Goldstein interpreted that the DCP test was to “match the scale and forms of the existing” contributory “buildings within the streetscape” (my emphasis). That is, in undertaking this test, only the more or less intact buildings would be considered, and the two storey forms would be excluded. This appears to be the interpretation Ms Goldstein brought in the memo to staff referenced at [25].

39. I cannot agree with Ms Goldstein’s interpretation here. If there were intention to seek a matching of contributory buildings only the DCP could have said so. My interpretation of Control 3 at Section 19C.1 is that there is scope for two storey development which matches up to an extent with the existing buildings in the streetscape. This would sometimes go beyond the representations provided in Figure 19C1-2.

40. The second of what I am calling the principal questions in this evaluation is the extent to which the proposal meets the test at Control 3. That is the extent it does: (1) match up with the existing buildings within the streetscape in terms of scale and form, and (2) retain the building’s original character.

41. Before turning to this, I need to mention now that the third question would then bring the heritage considerations into balance with the other considerations under s 4.15(1) of the EPA Act, including the low density zone objective of providing for the housing needs of the community.

42. For me there is incompleteness in regard to the evidence for both the second and third questions.

43. The applicant did not provide expert evidence in support of the argument that the proposal satisfied Control 3 at Section 19C.1.

44. Ms Goldstein submitted that the proposal did not satisfy Control C. Rather it comprised an “insensitive design” that had “no good qualities”. The addition generally comprised “all the things we do not want” in the “drastic” change it would bring upon the existing building character. Ms Goldstein also noted that the proposal was one of the only three adjacent single storey buildings that remained intact in that locality.

45. Under questioning in regard to the memo referenced at [25], Ms Goldstein also spoke of her role within the Council. This role is clearly as a specialist in regard to Council’s ambitions in regard to heritage conservation. Ms Goldstein spoke of the need to take development assessment in HCAs “seriously”. She saw her role as to “fight” and to “keep what is there”.

46. It is not the Council’s fault that there was no expert evidence to verify or counter the evidence of Ms Goldstein. But I am left with a concern that there may be an overstating of the weight which might go to heritage conservation in regard to development on the subject property with the evidence as presented by Council.

36. In evidence and submissions reference was made to the Burra Charter. Including Article 15 which provides:

“Article 15. Change

15.1 Change may be necessary to retain cultural significance, but is

undesirable where it reduces cultural significance. The amount

of change to a place and its use should be guided by the cultural

significance of the place and its appropriate interpretation.”

48. It seems to me that the Matong Street streetscape, in general, would not reasonably be seen as at a higher level if there were a gradient of cultural significance. The built form changes which have occurred in the street mean it is not reasonable to adjudge this street in the site environs “as a highly intact and consistent interwar development” (quoted from “Statement of Significance” of the Love Estate Thorne Grant HCA, behind Tab 3 in Exhibit 2).

49. I accept, and put some weight on, Ms Goldstein’s evidence that the subject site is one of three adjacent sites, occupied by what appear to be relatively intact single storey representations of the HCA’s building aesthetic.

50. This does not mean to me that the only form of two storey development on the subject site needs to match the “good design” representations in the DCP’s diagrams reproduced under [35]. I give considerable weight to the DCP control of “(matching) the scale and forms of the existing buildings within the streetscape”. I find it unhelpful that there is no limiting factors to the other part of this provision which requires redevelopment to “retain the original character of the building”.

51. In short there may be a two storey design which reasonably meets the DCP heritage provisions and, mindful of the concept of balancing and in this case the LEP objective of “meeting the housing needs of the community”, which goes further than the diagrams.

52. However, it is my conclusion that the plans accompanying the application do not provide for that balancing out. While, noting some concerns about balance in this evidence as well, I accept the opinion of Ms Goldstein that the proposal is lacking in responsiveness and architectural merit. While Mr Chisholm references Barkl, it does not seem to me that this case assists him greatly. Ms Goldstein referred to the quality heritage architect advice in the scheme considered in Barkl. I also note that O’Neill C finds in her judgement on that matter (at [30]) that she was:

“…satisfied that the proposal is distinguished and appropriately deferential to the original fabric of the dwelling.”

53. I have no sense that this proposal, as presented in the plans, is “distinguished”. While I have no comment on the extent it is deferential to the original fabric, I am concerned that there is no expert evidence to support the view that it is responsive to the setting. This is particularly noteworthy given the fact of the adjacent more “intact” residences.

54. The burden is on the applicant to prove their case and in this matter this has not occurred.

55. The Court orders:

1. The appeal is dismissed.

2. Development application No. 0021/18 for alterations and additions to an existing detached dwelling at 5 Matong Street Gordon is refused.

3. The exhibits are returned with the exception of Exhibits 1, A, B and C.

………………………..

P Walsh

Commissioner of the Court

**********

Decision last updated: 19 February 2019