Cindy and Co Pty Ltd v Ku-ring-gai Council
[2011] NSWLEC 1141
•25 May 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Cindy & Co Pty Ltd v Ku-ring-gai Council [2011] NSWLEC 1141 Hearing dates: 10 May 2011 Decision date: 25 May 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld in part.
2. The application under s 96 of the Environmental Planning and Assessment Act 1979 is approved. The development consent (0660/09) for alterations and additions to an existing dwelling house at 29 Beaconsfield Parade, Lindfield, is modified as set out in Annexure A
3. The exhibits, except Exhibits 2, A and D, may be returned.
Catchwords: APPEAL - Section 96 Application - modify conditions of consent - impact of changes to the existing dwelling and the proposed addition on the adjoining heritage item and the streetscape - impact of height, bulk and overshadowing on adjoining properties. Legislation Cited: Ku-ring-gai Planning Scheme Ordinance Category: Principal judgment Parties: Cindy & Co Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)Representation: Solicitors
Mr A Hudson
Mr A Gough
of Storey and Gough Lawyers (Applicant)
of Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 10157 of 2011
Judgment
This is an appeal against the deemed refusal by Ku-ring-gai Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (0660/09) for alterations and additions at 29 Beaconsfield Parade, Lindfield (the site).
Council granted the development consent on 23 June 2010 subject to conditions including:
16. Design changes
To minimise the environmental impact of the development, the following design changes shall be implemented:
i. The overall height of the development is to be reduced by 400mm, resulting in a first floor "glass sunroof" RL of 83.49 (AHD) and a maximum skillion roof and associated parapet of RL of 83.19 (AHD).
ii. Fixed horizontal obscured louvers are to be erected to the outside of the entire first floor, north-eastern window of Bedroom 1. The louvers are to be fixed at 45 o and are to be opaque.
iii. The bathroom/ensuite horizontal louver windows at the north western elevation are to have fixed maximum opening of 45 o and are to be opaque.
iv. The face brick of the existing dwelling is to be maintained. Rendering or painting of the existing face brick is not approved.
v. The roof cladding of the existing dwelling shall be red terracotta tiles to match the existing dwelling.
vi. Where there are changes to window and door openings in the existing dwelling, all new brick work is to match existing brickwork.
vii. The existing front timber windows and entry doors are to be maintained. The timber joinery on the front elevation is to be repaired and where necessary to match existing.
viii. The existing front verandah, verandah roof, side path and entrance are to be retained. A new 1metre wide path and stair from the driveway may be provided. The landscape plan is to be amended to reflect this change.
20. External finishes, colours and materials (heritage items and conservation areas)
Prior to the issue of a Construction Certificate, the Certifying Authority shall submit a colour scheme and or materials board to Council's Heritage Advisor for approval. A written acknowledgment from Council's Heritage Advisor must be obtained (attesting to this condition being appropriately satisfied) and submitted to the certifying Authority prior to the issue of a Construction Certificate.
The s 96 application originally sought to delete the following parts of condition 16: i (height), iv (use of render), v (roof cladding), vii (entry door and windows maintained) and viii (front verandah, roof and path entrance maintained) condition 20.
A s34 conciliation conference was held on site. No agreement was reached and the parties agreed to me determining the application in a hearing under s34(4)(b)(i). The parties also agreed that the evidence in the conciliation conference was to be evidence in the hearing. The parties agreed to changes to the proposal and on this basis the council did not press a number of matters in dispute. The agreed changes include the following amendments to Condition 16:
i. a reduction in the overall height by 200mm, instead of 400mm.
v. the use of concrete roof tiles instead of terra cotta sought by council and metal deck sought by the applicant
vii. front door to be timber with glazing.
viii the roof form of the front verandah is to be retained with new entry stairs within the splay.
The key dispute between the parties relate to the other design changes sought by Condition 16 which include the rendering of the brickwork (iv), the removal of the front windows (vii) and the replacement of the verandah columns.
The site and its locality
The site has an area of 1216sqm and a cross fall towards the front south eastern corner of approximately 7m. It is developed with a single storey inter war cottage constructed of face brick with a terra cotta roof. The adjoining and surrounding properties are developed with detached dwellings in landscaped gardens.
Planning controls
The site is zoned Residential 2(c2) under Ku-ring-gai Planning Scheme Ordinance (KPSO) . The proposal is permissible with consent. Clause 46 of the KPSO does not permit a dwelling with a height in excess of 8m. Height is measured from existing ground level to the ceiling of the top most floor.
The site is not listed as a heritage item nor is it within a conservation area but it adjoins a heritage item at 31 Beaconsfield Parade. Clause 61E of KPSO requires an assessment of the impact of the development on the heritage significance of the item and its setting.
The Ku-ring-gai Development Control Plan No 38 (DCP 38) provides provisions to be considered in the assessment of single lot detached residential development. Section 4.2.2 of DCP 38 provides that the maximum height of a dwelling shall not exceed 7m for slopes of less than 20 degrees. The parties agree that the slope is less than 20 degrees and that part of the addition exceeds the height control. They disagree whether the control is relevant given the height limit in the KPSO.
Section 4.2.11 of DCP 38 provides that building should be designed and sited to maintain at least 4 hours solar access in midwinter to the principal open space and north facing windows to living areas of adjoining properties.
The site is identified as a contributory item in a potential heritage conservation area (Area 7C of Southern Region Study Area by Architectural Projects) and National Trust Conservation Area (UCA 7). The study has been exhibited and it is expected that a draft LEP will be exhibited later in the year. Mr Hudson, for the council, acknowledged that the study had not statutory weight other than as a matter of the public interest.
The evidence
Mr P Dignam, for the council and Mr P Rappoport, for the applicant provided a joint report on heritage issues and oral evidence at the hearing. Ms B Newell, council's senior development planner and Mr W Ng, the architect of the proposal attended the hearing and were available to answer questions.
The Court heard evidence from residents who objected to the proposal. Their main concerns being the height and bulk of the rear addition and its impact on adjoining properties and the streetscape. The adjoining owner at 31 Beaconsfield Parade was concerned about what had already been approved and its impact on the solar access to his property. He considered that the condition, which required a reduction of 400mm in height should be maintained to mitigate against the impact. He and other residents were not concerned about changes to the existing house, including the rendering of the brickwork.
The key disagreement between the heritage experts is that Mr Dignam considers the existing house to be a relatively intact example of an inter war dwelling and that changes to its exterior should be minimised. Further, he considers that the dwelling contributes to the future conservation area and is part of the historical setting of the heritage item at 31 Beaconsfield Parade. In his opinion, rendering of the brick, replacement of the front timber windows and changes to the verandah would have an unacceptable impact on the heritage significance of the item. Further, the height of the rear addition would also impact on the item and reduce its amenity by reducing solar access.
Mr Rappoport considered that as the existing dwelling is not listed as a heritage item or within a conservation area, Mr Dignam's concerns were irrelevant. In his opinion, the changes to the exterior of the existing house would have no impact on the adjoining heritage item. He considered the height of the rear addition to be acceptable when viewed from the adjoining item and from the street.
Despite these polar positions, Mr Dignam and Mr Rappoport agreed on some changes to the conditions which, with the exception of the reduction in the height of the addition (by 200mm instead of 400mm), I have accepted.
Findings
I acknowledge Mr Dignam's concerns about the changes to an intact inter war dwelling. If the application before me were a development application and if the dwelling were within a conservation area I would find the proposal unacceptable. However, the identification of the house as a contributory item in a potential heritage conservation area in a study is preliminary and has no statutory weight. Further, the development consent has already approved changes that significantly alter the existing house, including removal and lowering of the existing main roof and removal of almost all the interior walls. The development consent also approves a large addition, which would be clearly visible from the street behind the existing dwelling. The addition is a modern design with a flat roof, rendered walls and aluminium windows. The addition is larger than the existing house and, due to the slope of the land, will be the dominant element on the site.
In these circumstances, seeking to retain the appearance of an 'altered' interwar bungalow with a large modern addition is of little heritage value. Given the development consent, it is appropriate that the rear addition and the existing house appear as a single building with a degree of design integrity. For these reason, I accept that the rendering of the existing dwelling, the removal of the front windows and the verandah columns is acceptable given that these changes are compatible with the architectural language of the approved addition. The retention of these elements would have little impact on the setting of the adjoining heritage item, when compared to the impact of the development consent.
The overshadowing impact likely to result from the addition on the north east living room window of the heritage item is not clear from the diagrams. The council assessment was made without the benefit of shadow diagrams, which illustrate the existing shadow. The diagrams of the proposed shadow illustrate that the proposal will overshadow these windows until about 10.30 am and that compliance with 4 hour standard in the DCP is not achieved. The applicant has provided further diagrams, which illustrate that there will be no improvement in the overshadowing of these windows if the height is reduced by either 200mm or 400mm. A reduction in height to achieve an increase in solar access to 31 Beaconsfield Road is therefore not warranted.
Nevertheless, I do not accept the deletion of condition 16 i. or that the height of the rear addition should be reduced by 200mm instead of 400m. Whether or not the height limit is 8m (KPSO) or 7m (DCP 38), the height of the addition has a significant visual impact when viewed from the adjoining heritage item and the streetscape. Due to the slope of the land the heritage item is at a lower level where it adjoins the proposed addition. Consequently, the addition will appear higher and more bulky than anticipated by the controls. The faade along this boundary, although setback, is a 16m length of un-interrupted wall, which further adds to the perception of bulk when viewed from the outdoor area of the heritage item.
The addition has a floor to ceiling height of the ground floor family room of 2.95m and floor to floor height of 3.20m. The floor to ceiling height of the first floor bedroom level is 2.70m with the roof being about 600mm higher. A reduction in the overall height by 400mm can easily by either lowering the floor to ceiling heights, increased excavation of a combination. This would not impact on the amenity of the proposed addition and would reduce the height of the addition when viewed from the street and the adjoining heritage item.
The council assessment report of the development application recommended the reduction in the height by 400mm in condition 16 i. to better comply with the Height of building (s 4.2.2) and Building height plane (4.2.3) of DCP 38 and to meet the requirements of cl 61E of the KPSO in relation to the impact on the heritage significance of the adjoining heritage item. I find that condition 16 i. should be retained.
Orders
1. The appeal is upheld in part.
2. The application under s 96 of the Environmental Planning and Assessment Act 1979 is approved. The development consent (0660/09) for alterations and additions to an existing dwelling house at 29 Beaconsfield Parade, Lindfield is modified as set out in Annexure A.
3. The exhibits, except Exhibits 2, A and D, may be returned.
Annelise Tuor
Commissioner of the Court
ANNEXURE A
Decision last updated: 02 June 2011
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