Co. As. It. Italian Association of Assistance v Ashfield Municipal Council

[2009] NSWLEC 1109

Land and Environment Court

of New South Wales

CITATION:	Co. As. It. Italian Association of Assistance v Ashfield Municipal Council [2009] NSWLEC 1109
PARTIES:	APPLICANT Co. As. It. Italian Association of Assistance RESPONDENT Ashfield Municipal Council
FILE NUMBER(S):	11183 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of existing structures and the construction of an educational establishment - impact on heritage significance of Haberfield Heritage Conservation Area and heritage item Yasmar - vehicular access and parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Ashfield Local Environmental Plan 1985 Ashfield Development Control Plan 2007 – Part C7 - Haberfield Heritage Conservation Area
DATES OF HEARING:	16,17/03/09
DATE OF JUDGMENT:	15 April 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC SOLICITORS Blake Dawson RESPONDENT MR J Robson SC SOLICITORS Wilshire Webb Staunton Beattie

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

15 April 2009

11183 of 2008 Co. As. It. Italian Association of Assistance v Ashfield Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application 10.2008.15.1 by Ashfield Municipal Council (the council) for the demolition of existing structures and the construction of an educational establishment on part of the land at 185 Parramatta Road, Haberfield (the site).

2 The council raised issues relating to the design, particularly the bulk and scale of the proposed buildings, the unacceptable impact on the heritage significance of the site and the wider area when compared to the existing residential character of the area and the unsatisfactory vehicular access and parking arrangements. A number of local residents provided evidence on-site and supported the council’s issues. The applicant also provided lay evidence in support of the proposed school.

The site and surrounding area

3 The site is Lot 1 in DP 604108 and has an area of approximately 24,400 sq m. The site has a 120 m north-east frontage to Parramatta Road, a common south-east boundary with dwellings facing Chandos Street, a north-west boundary to a house facing Bland Street and Haberfield Public School to the north-east. The site also has a 7 m frontage to Chandos Street that provides the access to the site.

4 The site is essentially divided into three portions. The eastern portion of the site, the subject of this application, is approximately 6000 sq m and contains an existing group of buildings that were formerly used as accommodation for male juvenile detainees, including high perimeter walls. The western portion of the site contains a group of buildings and facilities formally accommodating female juvenile detainees and currently used for training purposes by the Department of Correctional Services. The central portion of the site contains an 1880’s suburban villa called "Yasmar" and associated gardens and carriage loop that extend to the Parramatta Road frontage. Yasmar is currently vacant. A car park with access from Chandos Street is located in the western portion of the site and provides car parking for all the uses on the site.

5 The site is listed as a heritage item by the council and is also listed on the State Heritage Register. Yasmar is described as a rare surviving example of an 1850’s suburban villa still retaining its principal garden setting and remaining in a relatively intact condition. The key components of the estate, the house, stables, formal entrance gates and carriage circle and principal garden/arboretum still maintain their original relationship with each other. The house has historic, aesthetic and social significance at a State level, arrived from its association with John Bibb, the early colonial period architect of the house, Simeon Lord, the Ramsay family and GJN Grace. The garden is of historic and aesthetic significance at a State level as a rare example of the Gardenesque style.

6 The site is located within the Haberfield Heritage Conservation Area (the conservation area). Haberfield has historic significance as the first comprehensively planned and marketed Garden Suburb in Australia. Designed and developed by real estate entrepreneur and town planning advocate, Richard Stanton, the significance relates to the intactness of the original concept including the subdivision layout, tree-lined streets and housing. It is significant in the history of Australian domestic architecture for its fine collection of Federation houses and fences and shops, most with the decorative elements intact.

The proposal

7 The proposal involves the demolition of existing buildings and structures on the eastern side of the site and the construction of a one and two-storey building and associated works for use as an educational establishment. The applicant is a registered charity providing community and education services to the Italian-Australian community and to people across New South Wales. The bi-lingual educational establishment will consist of 12 classrooms, staff facility rooms, kitchen and canteen facilities, library and hall and stage. Other facilities include an assembly area, soft and hard play areas, covered outdoor learning area and landscaping. The existing car park area will be reconfigured to provide 51 spaces.

8 The proposal consists of two main components that are linked by the roof structure. The smaller building is single storey and contains the library and administration and adjoins the existing wall that separates that part of the site to be used for the school and “Yasmar”. The larger building is one and two-storeys and located parallel to the boundary with the residential properties in Chandos Street. This building has an overall length of around 90 m.

9 The land is owned by the Minister of Justice and administered by the Department of Lands. The use of that part of the site to be used for the school will be leased to the applicant.

Relevant planning controls

10 The site is zoned 5(a) Special Uses - Children's Court and Home under Ashfield Local Environmental Plan 1985 (LEP 1985). The proposed use is prohibited in this zone however it is permissible through State Environmental Planning Policy (Infrastructure) 2007. Division 2 of this policy applies to the use of State land and cl 18(2) provides that if development for a particular use is permitted (with or without consent) on land by the zoning of that land, development for that purpose may be carried out on any adjacent State land to which this clause applies despite the provisions of any local environmental plan that applies to that State land. Clause 18(2) is activated by the use of adjacent State land by Haberfield Public School.

11 Clause 18(3) states that consent must not be granted for development unless the consent authority is satisfied that the Director-General has certified in a site compatibility certificate that, in the Director-Generals opinion, the development is compatible with surrounding land uses. In this regard, the Director-General has issued a site compatibility certificate.

12 Part 4 of LEP 1985 provides Heritage provisions. Clause 30 provides aims for Part 4, cl 32 provides requirements for protection of heritage items and heritage conservation areas, cl 34 requires notification to the Heritage Council for the demolition of the heritage item, cl 37 provides specific requirements for the conservation area and cl 37 requires consideration of the likely effect of development on a heritage item and heritage conservation area.

13 Ashfield Development Control Plan 2007 – Part C7 - Haberfield Heritage Conservation Area (the DCP - Part C7) applies. The relevant parts are Section 1 – Objectives, Background, and Section 2 - Building Form.

14 Ashfield Development Control Plan 2007 – Part C10 - Heritage Conservation applies. The relevant part is Section 1 – Will it affect the heritage significance of the property and/or the conservation area?

15 The proposed development is also an integrated development and requires approval under s 57 of the Heritage Act 1977. Approval was granted by the Heritage Council of New South Wales on 2 April 2008

Impact on the Haberfield Heritage Conservation Area
The evidence

16 Mr Robert Moore provided heritage evidence for the council. He states that the sheer size, bulk and scale of the proposed school buildings, together with their form as aggressively scaled, skillion roofs, which are foreign in the Haberfield context, will make the school buildings obtrusive in the locality and on the site. This needs to be compared to the existing buildings that are relatively discreet behind the perimeter walls. Mr Moore does not accept the proposition that the modern style and form of the proposed school buildings have merit because they will not be confused with the surrounding hipped roof domestic scale buildings. He states that the school buildings are clearly designed to be separate and distinguishable for the designs own ends and not for any appropriate relationship with the important heritage setting in which they are proposed to be located.

17 Mr Wayne McPhee is the project architect and provided evidence for the applicant. He states that the impact of the new development is expressed as single and double storey masonry elements having domestic scale gable and skillion roof forms. Any impact is minimised by siting the new works wholly within the previously developed modern juvenile detention site. The setback/buffer zone between the development and the Chandos Street cottages, together with the siting, design, articulation and boundary treatment of the development will result in a "soft interface" so that the bulk and scale of the buildings responds appropriately to the existing character of the Haberfield area. Mr McPhee states that the building form will complement the nearby Federation style cottages.

Findings

18 In determining this issue with the Court must take into consideration the extent to which the carrying out of the development would affect the heritage significance of the conservation area (cl 32(4) and cl 37 of LEP 1985) and the relationship of the proposed development to the general pattern of development within the conservation area (cl 32(5) of LEP 1985). Clause 35 provides that consent must not be granted for land within the conservation area unless certain matters are taken into consideration. These matters largely relate to alterations, extensions and the erection of dwelling houses however the requirements provide an understanding of the form of development (and consequent character) anticipated in the conservation area.

19 As with LEP 1985, many of the controls in the DCP - Part C7 address alterations, extensions and the erection of dwelling houses however Sec 1 provides the following relevant objective:

(d) to ensure that when new buildings can be constructed, they are carefully designed to fit in with the heritage significance and character of Haberfield as a whole;

20 The site of the proposed development is a relatively isolated having no direct street frontage. There was general agreement that the most significant visual impact on the conservation area was from Chandos Street, and particularly those residential properties with a rear boundary adjoining the location of the proposed development. The properties at 112, 114, 116 and 118 Chandos Street were inspected on the site view. The location and height of the proposed building was marked by poles located on the site so a proper assessment could be made of the likely impact on these properties. The visual impact of the proposed development was also noted from Chandos Street between the existing dwellings.

21 In balancing the evidence of Mr Moore and Mr McPhee, I am satisfied that the conclusions of Mr Moore should be accepted. In my view, the relationship between the proposed building and the properties in Chandos Street is unacceptable even without the need to consider it within the conservation area. Based on the site view, I have little trouble in concluding that the location of the building, ranging from 4.58 m to 6 m from the rear boundary and to a maximum eave height of some 6.2 m (for the two storey classrooms) will create an imposing an overbearing appearance from these properties.

22 The unbroken length of the building exacerbates the dominant visual appearance of the building although I would acknowledge that some modulation is provided to this elevation that faces the properties in Chandos Street and that some relief is achieved but not to any significant degree in terms of addressing the bulk and scale of the building. The height is also exacerbated by the skillion roof that rises from the eave (and the properties in Chandos Street) to a height beyond the 6.2 m eave height. The eave height is around 1 m higher than the existing fence previously used for the detention centre. The existing buildings are not visible from the most adjoining properties in Chandos Street because they are hidden by the existing fence.

23 I also agree with Mr Moore on the design of the building. It is a utilitarian design that simply addresses the functional requirements of the school and in my view, largely ignores its conservation area context. The absence of an increasing setback with increased height for the two-storey building, the need to provide screening on the windows to achieve an acceptable level of visual privacy, the uncharacteristic roof form and the unbroken length of building highlight the incompatibility of the design with its conservation area context. I do not accept that the setback of the proposed building to the properties in Chandos Street or the existing and proposed landscaping mitigate the visual impact of the proposed building.

24 While it cannot be reasonably argued that the design of the building for a school should be subject to the same controls as those for alterations, extensions and the erection of dwelling houses, it also cannot be reasonably argued that the design of a school should have no regard to its context. The importance of the conservation area context is clearly set out in LEP 1985 and the DCP - Part C7. I am not satisfied that the design responds, in any meaningful way to its location within the heritage conservation area and particularly to the dwellings adjoining the site in Chandos Street.

25 Pursuant to cl 32(4), cl 32(5) and cl 37 of LEP 1985, I have considered the impact of the proposed development on the conservation area and found that the impact is unacceptable. On this basis, the appeal must be dismissed and the development application refused.

26 For completeness I will deal with the other issues.

Impact on the Heritage Item
The evidence

27 Mr Moore states that the siting, setbacks and articulation of the school building do not overcome its scale, bulk and character which will be obtrusive in the setting and which will conflict with both the historical and architectural values of "Yasmar". The composition of the house and garden, in which the garden is the principal element, will be completely upset and destroyed by the introduction of the proposed school buildings. The house will become a poor relation in its own setting, and auxiliary to the new school rather than the key building on the site. The gardens importance and relationship to Yasmar, rather than the school, will be lost.

28 Mr McPhee comes to the opposite conclusion. He states that the proposed school buildings are sited remote from Yasmar and located wholly within the previously developed, modern juvenile detention site with access provided from a single entry point at the north end of the site. The existing heritage valued vegetation is to be retained and the existing masonry wall which lies at the east between Yasmar and the development site will form a visual barrier between the new and heritage valued works. Based on the activities carried out on the site through the use as a juvenile detention centre, the school will be self-contained within a defined site currently enclosed by garden walls, dense vegetation and perimeter fencing. The new works will barely be visible from Yasmar.

Findings

29 The difference between the evidence of Mr Moore and Mr McPhee essentially comes down to how the impact on the heritage item should be assessed. Mr Moore takes the view that the heritage assessments to date have been largely inadequate and that prior to any development a comprehensive heritage assessment should be undertaken. The majority of residents who gave evidence adopted a similar position.

30 Mr McPhee on the other hand, takes the view that the detention centres and their buildings and other structures are part of the heritage item and are relevant matters to take into consideration in the assessment process. If the proposed development does not create any additional impact on Yasmar and its gardens, then it could not be reasonably said that there was an unacceptable heritage impact on Yasmar. A significant part of Mr McPhee's argument is the retention of the existing wall between the proposed development and Yasmar that effectively screens the majority of the proposed school buildings.

31 The council heritage listing includes Yasmar and its gardens and also the area occupied by the two separate detention centres located on either side. To give full and proper consideration to the requirements of LEP 1985, it is necessary to consider the whole site and not just part of the site. The heritage studies undertaken for the site (Yasmar Homestead - A conservation study and draft conservation policy for the Yasmar Homestead and grounds at Parramatta Road, Haberfield NSW, Col Brady, October 1982, Conservation Analysis for Yasmar, NSW Public Works Department, September 1994 and Yasmar Reserve, Haberfield - (Draft) Plan of Management, Department of Lands, August 2008) are not particularly helpful. All adopt a similar approach in that they only address the central part of the site containing Yasmar and its gardens. The two separate detention centres located on either side are largely ignored despite being part of the identified heritage item. Curiously, the 2008 draft study goes as far as to include the proposed school buildings in the Plan of Management.

32 The construction of the two detention centres in the past has clearly impinged on the original setting of Yasmar. The two detention centres are detracting elements on the original setting however they exist and presumably at the time of their approval were considered to not have an unacceptable impact on the significance of Yasmar. Consequently, the buildings, walls and structures associated with the two detention centres should realistically be considered in the assessment of any impact on the heritage significance of Yasmar.

33 In coming to this conclusion, it does not necessarily follow that the existence of the two detention centres provides the opportunity for uncontrolled development on these sites. It must be remembered that both detention centre sites also fall within the defined heritage item status under LEP 1985. Consequently, the assessment of any development on the two detention centre sites will depend on the individual characteristics of the proposed development and the subsequent impact on the significance of Yasmar. For example, the use of the existing detention centre buildings (for use other than as a detention centre) could potentially create no significant impact on Yasmar and its gardens. Conversely, the demolition of the buildings (as proposed in this application) raises additional and more complex heritage considerations given the heritage status of this part of the site. In this case, the proposal seeks the demolition of the detention centre buildings but the retention of the existing wall to screen the proposed development from Yasmar. The demolition of only part of the detention centre buildings and ancillary structures raises further heritage considerations particularly when the only purpose gained by the retention of the existing wall is to screen the proposed development from Yasmar.

34 In considering the likely effect of the proposed development on the heritage significance of the heritage item (as required by cll 32(3) and 37), I am not satisfied that the proposed development is acceptable. It would seem that if the detention centre buildings were to be demolished then it would be appropriate to reassess the relationship of development on this part of the site with the more significant central part of the site that contains Yasmar. I do not accept that that this obligation should be so easily dispensed with by the retention of the existing wall, which is within the curtilage of Yasmar and adversely impacts on its heritage setting. In my view, the proposal does not address relationship between the Yasmar, the proposed development and the wall. Without the retention of the wall, the proposed development is clearly unacceptable.

35 It may well be that a school could be located on the proposed site, with the removal of the wall, however it would need to be more modest in its bulk, scale and appearance and provide a more sympathetic relationship with Yasmar.

Traffic and parking
The evidence

36 Mr Graham Pindar provided evidence for the council and Mr Bruce Masson provided evidence for the applicant. The main areas of disagreement between the experts were the width of the access from Chandos Street, the allocation of car parking spaces, the one-way section of the access and the general increase in traffic generation within the area.

The width of the access from Chandos Street

37 The width of the access from Chandos Street is 7 m. The available area is controlled by the boundaries of the lease to the school and not by a property boundary. There was agreement between Mr Pindar and Mr Masson that a carriageway of 5.4 m and a kerb width of 0.3 m on the eastern side of the access were acceptable. They disagreed on the width of the proposed footpath on the western side of the access. Mr Pindar requires a minimum width of 1.9 m for the footpath, consisting of a 1.5 m pedestrian footpath, 0.1 m fence and 0.3 m kerb. This configuration will require a minimum width of 7.6 m. Mr Masson states that the roadway could be narrowed to achieve a better and still workable allocation within the 7 m width, including a 1.7 m footpath. It was submitted that in the event that the Court did not accept Mr Masson’s evidence, the applicant would accept a condition requiring an increase in the width of the access from Chandos Street.

38 On this issue, I accept the evidence of Mr Pindar. The access from Chandos Street will have concentrated flows of vehicles during the morning drop off and the afternoon pickup times for the school and as such the width of the access should not be compromised. Similarly, the footpath used by children and parents leading to the school from Chandos Street should also not be compromised because of the need to provide adequate levels of safety and separation from vehicles. If the development were to be approved, a condition requiring an increase in the width of the access would be appropriate.

The allocation of car parking spaces

39 The proposed reconfiguration of the car park provides for 56 car parking spaces, including pickup and set down areas. As I understand, Mr Pindar and Mr Masson agreed that the 56 car parking spaces were adequate for the proposed school, the likely future use of the Yasmar and the training conducted by the Department of Correctional Services although no specific spaces are allocated for each of the different uses on the site.

40 I am not satisfied this is an appropriate way of dealing with parking on the site, particularly given the remoteness of the car park from Chandos Street and the ability to use on street parking if the car parking area is full. If the development application were to be approved, a condition requiring the specific allocation of car parking spaces for the different uses would be appropriate.

41 This could be done by way of a condition and would not be a reason to refuse the development application.

The one-way section of the access

42 The reconfigured car parking layout creates a small area of the access where there is insufficient width for two-way movement of vehicles. This requires particular traffic planning measures to allow only one-way movement of traffic. This was seen as unacceptable by Mr Pindar and acceptable by Mr Masson. The available area for the access is controlled by the boundaries of the lease to the school and not by a property boundary.

43 I agree with Mr Pindar that the one way movement of traffic, even for only a small area of the access, is unacceptable given the likely high levels of traffic during the morning drop off and the afternoon pickup times for the school and the high potential for back up traffic into Chandos Street. If the development application were to be approved, a condition requiring the widening of this part of the access to allow two-way movement of traffic would be appropriate.

44 This could be done by way of a condition and would not be a reason to refuse the development application.

Increase in traffic generation within the area

45 There was a general concern from the local residents that the proposed development would generate unacceptable levels of additional traffic within the area, particularly considering the existing levels of traffic generated by Haberfield Public School.

46 If adequate car parking spaces are allocated to the proposed development, as well as designated pickup and drop-off areas, and a more efficient two-way flow of traffic into the car park is achieved, then I do not accept that a general increase in traffic in the area a valid reason for the refusal of the development application even though it is likely that there will be additional traffic within the area.

47 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application 10.2008.15.1 for the demolition of existing structures and the construction of an educational establishment on part of the land at 185 Parramatta Road, Haberfield is refused.
3. The exhibits are returned.
____________
G T Brown
Commissioner of the Court