Constaninidis v Randwick City Council

[2015] NSWLEC 1259

Land and Environment Court

New South Wales

Medium Neutral Citation:

Constaninidis v Randwick City Council [2015] NSWLEC 1259

Hearing dates:

25-26 May, 2015

Decision date:

14 July 2015

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

1.    The appeal is dismissed.

2.    Development Application No. 418/2014 for alterations and additions to an existing dwelling at 107 Darley Road, Randwick, is refused.

3. The exhibits, other than exhibit 2, A and K, are returned.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling; impact of the proposal on the heritage significance of the heritage conservation area; height, bulk and scale of alterations and additions and elevated pool terrace; site coverage and deep soil definitions; size of rear garage.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Christiane Constantinidis (Applicant)
Randwick City Council (Respondent)

Representation:

Mr A. Galasso SC (Applicant)
Mr S. Patterson Solicitor (Respondent)
Hall & Wilcox Lawyers (Applicant)
Wiltshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

10175 of 2015

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 418/2014 for alterations and additions to an existing dwelling (the proposal) at 107 Darley Street, Randwick (the site) by Randwick City Council (the Council).

2. The appeal was subject to mandatory conciliation on 25 May 2015, 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 pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

Issues

3. The Council’s contentions in the matter can be summarised as:

• The proposal is of an excessive scale due to the inappropriate design, which raises the majority of the dwelling and a significant extent of the private open space one storey above existing ground level resulting in an overly bulky structure and an inadequate landscape setting, with little relationship to the ground level of the site. The elevated private open space at the rear of dwelling has a detrimental privacy impact on adjoining dwellings.

• The private open space of the proposal is compromised and inadequate.

• The parking provision is excessive for a single dwelling and creates unacceptable visual bulk.

4. The applicant seeks the deletion of the following conditions of consent (exhibit 4):

2 (a) The garage is to be reduced in size such that it has a maximum internal dimension of 6m x 6m and the roof top facilities, including the cabana, are to be deleted:

(b) The swimming pool and surrounding decking shall be relocated to ground level;

5. The applicant seeks the amendment of the following condition:

Council’s version:

2(c) Original ceilings in the entry hall and proposed rumpus room are to be retained as part of the development. The original ceiling in the proposed guest room should also be retained to the greatest extent possible.

Applicant’s version:

Original ceilings in the proposed rumpus room and guest room are to be retained as part of the development. The original ceiling in the entry hall should also be retained to the greatest extent possible.

6. I raised the issue of the impact of the proposal on the heritage significance of the North Randwick Heritage Conservation Area (North Randwick HCA), as it was not a contention raised by Council. I raised this issue for the following reasons:

• The proposal retains only the front two rooms of the existing modest Late Federation bungalow;

• The existing bungalow dates from the key period of development of the North Randwick HCA;

• The Heritage Impact Statement for the existing bungalow states that the existing dwelling dates from the significant period of the North Randwick HCA and indicates that the existing dwelling contributes to the heritage significance of the HCA (exhibit F, p 16);

• The dwelling is in a prominent position within the North Randwick HCA, fronting Darley Road, opposite Centennial Park.

7. In response to the issue raised by the Court of the impact of the proposal on the heritage significance of the North Randwick HCA, both parties’ heritage experts came to Court, joint conferenced during the afternoon of the hearing and following their joint conferencing, provided concurrent evidence.

The site and its context

8. The site is on the southern side of Darley Road, with rear access from Huddart Lane, on the block bounded by Dangar Street to the west and Dangar Lane to the east.

9. The site is 805.3m2 in area, with an eastern boundary dimension of 55.995m and a southern boundary of 15.24m.

10. The site falls to the south, toward the rear laneway and to the east, with an approximate fall of 3m across the length of the site. The steeper portion of the site is the northern half of the site. The site contains a one and two storey modest dwelling and a separate double garage structure to the rear of the dwelling.

11. There is a dilapidated residential flat building on the adjacent property to the east and a two and three storey dwelling on the adjacent property to the east.

Background and the proposal

12. The original proposal submitted to Council (revision A) was amended following consultation with Council staff and the proposal before the Court is revision C (exhibit A). Some plans in exhibit A were further amended following the concurrent evidence of the heritage experts and tendered (exhibit K).

13. The proposal is to retain the front two rooms and front elevation of the existing dwelling and to construct a contemporary ‘box’ behind the retained front portion of the existing dwelling. The proposal includes the reconstruction of some elements of the external form of the existing dwelling, including part of the roof and the western gable. The proposal retains the existing front driveway as a hard stand and provides a new entry on the eastern side of the dwelling. The existing driveway is shown modified as a level hardstand at RL 50.0 on the exhibit A plans and in closing submissions the applicant suggested the driveway could be retained as sloping, with additional planting added to the landscape plan adjacent to the proposed external stair providing access to the lower ground level, which could be accomplished by a Court direction for an amended landscape plan, if considered appropriate.

14. The two storey rear addition is elevated one storey above ground level (approximately RL 47.5) on piloti. The proposed ground floor at RL 50.36 includes a kitchen, laundry, dining and living area opening onto the rear terrace. The lobby level at RL 50.96 retains part of the existing entry lobby, the front two existing rooms at RL 51.26 and includes a new stair, lift and powder room.

15. The first floor of the addition at RL 53.80 includes four bedrooms, two bathrooms and a master suite with a balcony. The parapet of the addition is at RL 56.85.

16. The proposal includes a garage 6.8m deep, across the full width of the rear of the site, with a 1.2m setback to both side boundaries. The garage provides two car spaces with a manoeuvring area, which could accommodate an additional two cars. There is a pedestrian link between the garage and the basement level of the dwelling under the raised pool decking.

17. There is a pool and decking at RL 50.36 (landscape plan, exhibit B) along the western side of the backyard, linking a cabana and lawn area over the garage at the same level. The proposal includes a privacy screen along the western side of the raised pool deck, 1.75m high, which is approximately 4.5m above ground level. The pool and privacy screen are setback 1.2m from the western boundary. The cabana includes a shade structure over and a toilet. The top of the cabana shade structure is 4m above the pool decking level (exhibit A).

Planning framework

18. The site is zoned R2 Low Density Residential pursuant to Randwick Local Environment Plan 2012 (LEP 2012) and the proposal is permissible with consent. The relevant objectives of the R2 zone are as follows:

• To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area.

• To protect the amenity of residents.

19. Gross floor area is defined in the dictionary of LEP 2012 as follows:

gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes:

(a) the area of a mezzanine, and

(b) habitable rooms in a basement or an attic, and

(c) any shop, auditorium, cinema, and the like, in a basement or attic,

but excludes:

(d) any area for common vertical circulation, such as lifts and stairs, and

(e) any basement:

(i) storage, and

(ii) vehicular access, loading areas, garbage and services, and

(f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and

(g) car parking to meet any requirements of the consent authority (including access to that car parking), and

(h) any space used for the loading or unloading of goods (including access to it), and

(i) terraces and balconies with outer walls less than 1.4 metres high, and

(j) voids above a floor at the level of a storey or storey above.

20. Site coverage is defined in the dictionary of LEP 2012 as follows:

site coverage means the proportion of a site area covered by buildings. However, the following are not included for the purpose of calculating site coverage:

(a) any basement,

(b) any part of an awning that is outside the outer walls of a building and that adjoins the street frontage or other site boundary,

(c) any eaves,

(d) unenclosed balconies, decks, pergolas and the like

21. The Randwick Comprehensive Development Control Plan 2013 (DCP 2013) includes the following at Section A1 1.5 regarding interpretation:

Terms in this DCP generally have the meaning ascribed to them in the Dictionary to the RLEP or the Act. Where additional terms apply or the meaning of terms differs, definitions have been included in the glossary and relevant parts of this DCP.

22. The site is within the North Randwick HCA. DCP 2013 includes the following relevant paragraphs in the statement of significance for the HCA at Section B2 4.9:

Aesthetic Significance

The North Randwick heritage conservation area is significant for its persistent, strongly Federation streetscapes. The imposition of a varied subdivision pattern, on the north facing slopes adjoining Centennial Park, has created numerous internal views and vistas of special interest. The combination of street pattern, topography and native and cultural plantings, set off the areas original buildings to good advantage.

The heritage value of the area largely derives from its Federation and Inter-War housing, its predominantly single storey scale, face brick construction, dominant slate and terra cotta tiled roofs and well established cultural plantings. The mixed building stock adds to the area’s interest, ranging from larger Federation houses on Darley Road to small semi-detached on Dangar Street. Whilst many buildings have been substantially altered, there has been, very little redevelopment relative to other parts of Randwick. Most buildings and streetscapes retain their essential period character.

Historical Significance

The consistency of the architecture in North Randwick is partly a reflection of the unusual historical circumstances which delayed the release of the area for housing. Most of the area originally formed part of the Sydney Common. For many years it was reserved for water supply purposes. The eventual residential release saw the area develop reasonably quickly, despite the slow start in the 1890s recession. As a consequence, most housing dates from the early twentieth century.

The continuing physical and historical connection with Centennial Park is important and gives special significance to houses fronting Darley Road. These buildings tend to be larger and grander, with more generous allotments.

23. DCP 2013 includes the following guidelines for change in the North Randwick HCA at Section B2 4.9.4:

Alterations & Additions

Part of the heritage significance of the area is its predominantly single storey scale. Single storey rear additions are therefore preferred so as not to compromise this aspect of significance. The dwellings are generally modest workers cottages on small blocks, and in order to increase the size of the dwelling, may be necessary to provide some upper level floor space. The bulk and prominence of any upper level addition should be minimised however. Any upper level addition should be set well to the rear to minimise streetscape visibility and retain the integrity of the original roof.

Outbuildings to the Rear

The scale and bulk of outbuildings to the rear should not dominate the main building on the site. Outbuildings should be of a 1 ½ storey scale with upper floor accommodation within available attic space. The maximum wall height of outbuildings is to be 3.5m and roof pitch is to be consistent with that of the main building on the site.

24. Vehicle parking rates at Section B7 3.2 of DCP 2013 requires 2 spaces per dwelling house with 3 or more bedrooms.

25. Site coverage at Section C1 2.3 of DCP 2013 includes the following explanation and objectives:

Explanation

Site coverage in conjunction with setback controls determine the extent and location within which a building may be developed. It aims to reserve sufficient unbuilt upon areas on a site for accommodating private open space, deep soil planting, permeable surfaces and open recreational and service areas.

Site coverage is expressed as a percentage to describe the proportion of a site that could be built upon. The allowable site coverage generally decreases as allotment size increases, so that the mass and scale of any building will not form a detracting feature compromising the streetscape character.

Objectives

To ensure new development and alterations and additions to existing dwellings reserve adequate unbuilt upon areas for the purpose of private open space, deep soil planting, permeable surfaces and ancillary development.

26. The maximum site coverage control is 45% for the site. The definition of site coverage excludes the following:

(a) an access ramp,

(b) any part of an awning, blind or canopy that is outside the outer wall of a building,

(c) a balcony, deck, patio, pergola, terrace or verandah attached to the dwelling that is not enclosed by a wall higher than 1.4m above the floor level,

(d) the eaves,

(e) a driveway,

(f) a fence or screen,

(g) a pathway or paving,

(h) a rainwater tank that is attached to the dwelling,

(i) a swimming pool or spa pool.

27. Landscape and permeable surfaces at Section C1 2.4 of DCP 2013 includes the following explanation and definition:

Explanation

Landscaping assists in visually integrating development with the streetscape and the wider neighbourhood. It also provides an attractive and useable outdoor environment.

Deep soil planting moderates local climatic conditions, and enhances permeability of surface water and infiltration of stormwater, thus improving the environmental performance of development. It also provides for trees, shade and plays a screening function that improves mutual privacy and visual amenity between development and the neighbours.

Definition

Deep soil permeable surfaces include areas used for the growing of plants (including grasses, shrubs and trees) and areas occupied by loose gravels upon soil at the ground level of the site.

Deep soil permeable surfaces do not include swimming and spa pools, paved areas, planter boxes, or planted areas above basements, podiums, roofs or slabs.

28. The landscape and permeable surfaces control requires a minimum of 35% of the site to be deep soil permeable surface area. Deep soil and permeable surfaces must have a width of not less than 900mm and the front yard of the development is to maximise the amount of permeable surfaces.

29. Private open space at Section C1 2.5 includes the following explanation and relevant objectives:

Explanation

Private open space provides outdoor living areas for recreational activities of residents. Private open space should be located and designed to maximise solar access, privacy, accessibility and useability.

Objectives

To ensure an adequate level of private open space is provided for dwellings to enable passive recreational activities by residents.

To ensure private open space is designed for useability, solar access, privacy and accessibility.

30. A minimum 8m x 8m area is required for private open space for the site.

31. Building height at Section C1 3.2 of DCP 2013 includes the following explanation, definition and objectives:

Explanation

Building height is a major factor affecting the visual mass of a development and the degree of overshadowing on the neighbouring properties.

In Randwick City, dwelling houses, semi-detached dwellings and dual occupancies are typically single to double storeys, with an additional storey occurring on sloping sites.

The maximum building height control is stipulated in the RLEP, which varies across different residential zones. The maximum building height is specified at 9.5m in the R2 (Low Density Residential) Zone. This maximum building height control is measured to the topmost point of a building.

Operating in conjunction with the LEP height control, external wall height provision in this DCP stipulates the maximum height for the external enclosing walls of a building. Any structures above the wall height limit are intended for roof elements only. The two height controls together ensure the scale and mass of development complement the desirable streetscape character and achieve a suitable urban design outcome.

Definition:

“Wall height” is the vertical distance as measured from the ground level (existing) to the topmost point of an external wall. The topmost point of an external wall is taken to be the underside of the eaves or the highest point of a parapet, and excludes gable ends and clerestory windows. For skillion or butterfly roofs, the highest point of the external wall is measured to the underside of the eave of the lower end of the roof. For dormer windows that protrude horizontally from the roof by 2m or more, external wall height is measured to the underside of the dormer eaves.

Objectives

To ensure development height establishes a suitable scale to the street and contributes to its character.

To ensure development height does not cause unreasonable impacts upon the neighbouring dwellings in terms of overshadowing, view loss, privacy and visual amenity.

To ensure the form and massing of development respect the topography of the site.

32. The maximum external wall height control is 7m. The control is qualified by the following text:

An alternative design that variates [sic] from the above external wall height controls may be acceptable having regard to the following consideration:

Site topography

Site orientation

Allotment configuration

Allotment dimensions

Potential impacts on the visual amenity, solar access, privacy and views of the adjoining properties

33. Building design at Section C1 4.1 of DCP 2013 includes the following explanation and relevant objective:

Explanation

Following the establishment of the permissible building envelope (defined by site coverage, setbacks, FSR, overall building height and external wall height), the form and mass of development need to be modelled to respond specifically to the site characteristics and the surrounding natural and built context.

Façade treatment and detailing affect the visual presentation of buildings and play a pivotal role in enhancing the character and continuity of streetscapes. Façade composition has an impact on the perceivable bulk and scale of a building and should be carefully exercised to achieve an appropriate streetscape outcome.

Objectives

To ensure the form, scale, massing and proportions of dwellings recognise and adapt to the characteristics of a site in terms of topography, configuration, orientation and surrounding natural and built context.

34. Building design includes a note in relation to heritage items and buildings within heritage conservation areas that it may be desirable to distinguish between old and new works.

35. Car parking and access at Section C1 6 includes the following extract under explanation and relevant objective:

Explanation

The location, size and configuration of parking and vehicular access have significant implications on building design and the streetscape character.

Garages tend to create a blank appearance to the building façade at the expense of window openings and articulation.

Objectives

To ensure the location and design of parking and access facilities do not adversely impact on the amenity of neighbouring properties.

36. DCP 2013 includes the following relevant controls for swimming pools at Section C1 7.5:

iii) Locate to minimise noise impacts on the adjoining dwellings.

iv) The coping level of the pool must relate to the topography of the site. On sloping allotments, the higher side of the site must be excavated, so that the pool structures do not protrude more than 1m above ground level (existing) on the lower side.

v) Setback the outer edge of pool coping a minimum of 900mm from the rear and side boundaries.

vi) The side and rear setback areas must incorporate screen planting extending along the full length of the pool. The planting must be capable of reaching a mature height of not less than 3m. This requirement may not apply where there is a need to retain existing view corridors from adjoining and nearby properties.

vii) Position any decking away from the side and rear boundaries to minimise adverse privacy impacts on the neighbours.

37. The area specific controls include, at Section C1 8.1 Development in Laneways, the following relevant controls:

i) All ancillary buildings fronting laneways must have a maximum height of not more than 6m. The maximum external wall height is limited to 4.5m.

Ancillary buildings on laneways must have a mass and scale secondary to the primary dwelling on the allotment. Any upper level (for instance, storey above garage) must be contained within the roof form as an attic storey.

Public submissions

38. One resident objector provided evidence on site. Her objection to the proposal can be summarised as follows:

• The proposal is inconsistent with the low density residential heritage character of the area;

• The raised pool terrace will have unacceptable privacy impacts on surrounding properties;

• The proposal overshadows neighbouring properties;

• The proposal is inconsistent with the Council’s controls; and

• The area is flood prone.

Expert evidence

39. Ms Kerry Gordon (planning) and Ms Lorraine Simpson (heritage) provided expert evidence on behalf of the Council. Mr Gary Shiels (planning) and Ms Ruth Daniel (heritage) provided expert evidence on behalf of the applicant.

Height, scale and bulk of the proposed addition and the elevated pool and decking

Evidence

40. The planning experts agreed that the proposal complies with the height and floor space ratio development standards in LEP 2012. According to Ms Gordon, the proposal’s compliance with the floor space ratio development standard belies its true impact, as the undercroft area is not included in the gross floor area calculation, yet the proposal’s height, bulk and scale is significantly augmented by the raising of the building a storey above ground level.

41. The planning experts agreed that the contemporary addition does not comply with the external wall height control of 7m in DCP 2013 and they agreed that the site is not steeply sloping, so the 8m wall height for steeply sloping site is not applicable. In Mr Shiels’ view, the proposal is in context with the adjoining buildings and the wall height is similar to the wall heights of buildings on adjoining properties. In Ms Gordon’s opinion, the purpose of the wall height control of 7m is for development to be predominately 2 storeys and the raising of the addition a storey above the ground level the proposal is effectively 3 storeys in height. In her view, the proposal will appear as a three storey building extending approximately 15m past the rear of the existing dwelling (exhibit 3, p 12).

42. The planning experts disagreed on the calculation of site coverage. According to Ms Gordon, the proposal’s site coverage is 55% of the site area which represents a breach of the DCP 2013 control of approximately 85m2 (exhibit 3, p 6). Mr Shiels calculates the site coverage as 39% (exhibit E, p 18). According to Ms Gordon, the difference between them is that she has included the area of the undercroft as it is an area covered by building. In concurrent evidence, the experts agreed that the raised private open space structure should be included in the site coverage calculation.

43. In Ms Gordon’s view, the artificially raised private open space area results in unacceptable visual bulk when viewed from adjoining properties (exhibit 3, p 12). In Mr Shiels’ opinion, the rear yard of the adjoining property to the west is approximately 3m higher than the site and there is a tennis court on the adjoining property to the east, so with the proposed landscaping, the raised private open space will be in context with the development in the locality and not have any unreasonable impacts on neighbours. The raised private open space will not be readily visible when the landscaping is mature (exhibit 3, pp 7-8). According to Mr Shiels, the proposal results in a satisfactory and usable landscaped area.

Findings

44. The maximum external wall height control of 7m in DCP 2013 envisages a variation of the wall height for alternative designs that respond appropriately to existing site constraints. The floor level of the living areas of the proposed addition has been determined in response to the floor level established by the retained portion of the existing bungalow. I accept the agreement of the planning experts that the neighbouring buildings have a similar external wall heights to the proposal for at least part of the rear extension of the proposed addition and for this reason, I accept Mr Shiels’ evidence that the proposed addition to the existing bungalow is broadly commensurate with its context. Giving significant weight to the compliance of the proposal with the height of buildings development standard in LEP 2012 and allowing for an alternative design that exceeds the wall height control in DCP 2013; justified on the basis of the unique constraints and opportunities of this site, including the existing floor level of the bungalow, the fall of the site the rear and the built form of surrounding development; I am satisfied that the bulk and scale of the proposal addition is acceptable.

45. I accept Ms Gordon’s evidence that the raised private open space terrace results in unacceptable visual bulk when viewed from adjoining properties. The top of the privacy screen on the western side of the pool terrace, which runs the length of the backyard from the rear extent of the proposed addition to within 2m from the rear boundary, is 4.5m above existing ground level and is positioned 1.2m from the shared boundary with 105 Darley Road. I do not accept that this is justified by the immediate topography. The cabana roof structure is 4m above the raised private open space level. A 4.5m high screen and cabana roof structure, positioned adjacent to the shared boundary with 105 Darley Road, is, in my view, a significant and unacceptable imposition on the amenity of adjoining neighbours.

46. I do not accept that the raised private open space terrace will not be visible from surrounding properties and the public domain. The raised terrace, which includes the pool, the terrace area to the east of the pool, a cabana and a rooftop lawn area over the garage, covers roughly three quarters of the backyard and is, at the highest point, 3.4m above existing ground level (Section 7 DA:300 exhibit A). The raised private open space terrace will provide a viewing platform from which the residents of the proposal will be able to view the private open space of surrounding properties, including properties in Wentworth Street, which results in an unacceptable impact on the amenity of neighbouring properties.

47. The raising of the pool above ground does not comply with control 7.5(iv) of DCP 2013 requiring coping level of pool to relate to the topography of the site.

48. The impact of the raised private open space terrace to the rear of the proposed addition on the amenity of neighbouring properties is, in my view, unacceptable and determinative, regardless of the numerical compliance or otherwise of the proposal with the site coverage and deep soil permeable surface area controls in DCP 2013. However, for the sake of completeness, I will deal with the disagreement of the parties regarding the calculations.

Site coverage

49. Site coverage, in conjunction with setback controls, determines the extent and location within which a building may be developed, according to the DCP 2013 at 2.3. Site coverage is expressed as a percentage to describe the proportion of a site that could be built upon and the control seeks 45% of the site to be occupied by the building footprint. The object of determining a building footprint is to reserve adequate unbuilt upon area for private open space, planting, permeable surfaces and ancillary development. The definition of site coverage in DCP 2013 corresponds and extends the definition of site coverage in LEP 2012.

50. With reference to the definition of ‘site coverage’ at 2.3 of DCP 2013, site coverage is determined by the ‘outer wall’ of the building at (b), excluding the items listed in the definition. For this proposal, the site coverage therefore includes the following:

• The area within and including the outer walls of the retained portion of the existing bungalow, excluding the front verandah and the entry porch, based on (b) of the definition; as these areas are outside of an outer wall (which for the purpose of the definition I have interpreted to be the double skin of brickwork of an external wall);

• The area within and including the outer walls of the proposed addition, including the rear extent of the first floor as it extends over the ground floor outdoor dining area and excluding the rear balcony on the first floor;

• The area within and including the outer walls of the garage.

51. Site coverage does not include a swimming pool, at (i) of 2.3 of DCP 2013. Based on the ordinary meaning of the words in the definition, the swimming pool is excluded from the site coverage calculation, regardless of whether it is elevated above ground level, because the exclusion of a swimming pool or spa pool is not qualified by the definition and the area beneath the pool in the proposal is either open or devoted to uses associated with the pool.

52. The site coverage diagramme in the application (Site coverage, Drawing AR:02 Rev C exhibit A) calculates the total site coverage as 447m2, including the approximately 60m2 of the pool area between the dwelling and the garage. The site coverage, if calculated according to the above interpretation of the definition, excludes the 60m2 of the pool area and the areas of the front and entry verandahs, resulting in a site coverage area likely to be compliant or close to compliant with the 45% of the total site area sought by DCP 2013.

Deep soil permeable surface area

53. The deep soil permeable surface area assists in visually integrating development with the streetscape, according to the DCP 2013 at 2.4. Deep soil permeable surface area is expressed as a percentage of the site area and the control seeks 35% of the site area as deep soil permeable surface area, with a width of at least 900mm. The object of the control is to ensure a visual balance between building structures and open space.

54. The explanation diagramme of deep soil in DCP 2013 excludes timber decking and swimming pools as being part of the deep soil permeable surface area. It includes deep soil planting, loose gravelled surfaces on soil, lawn and private open space.

55. The deep soil permeable surfaces area is exclusive of site coverage, according to the objective of site coverage in DCP 2013, ‘to ensure new development and alterations and additions to existing dwellings reserve adequate unbuilt upon areas for the purpose of private open space, deep soil planting, permeable surfaces and ancillary development [italics added]’. The applicant’s inclusion of the undercroft area, identified on exhibit A as ‘covered landscaped area’ beneath the proposed addition, in the deep soil permeable surface area calculation (Deep soil landscape Drawing AR:02 Rev C exhibit A) is incorrect, as these areas are built upon and therefore do not meet the definition of deep soil permeable surface area.

56. The deep soil permeable surface area, according to the definition in DCP 2013, is, in the proposal, confined to the garden area (at RL 47.46) which is roughly 72m2, the garden area in the front yard calculated by the applicant to be 82m2 and the areas to the side of the development with a minimum width of 900mm.

57. I accept Ms Gordon’s evidence that the deep soil permeable surface area calculation is likely to be less than the desired 35% as a result of the area under the proposed dwelling being excluded from the calculation. Although I have not considered any short fall in deep soil permeable surface area as determinative in this matter; I am, however, confident that a more skilful design can easily achieve the applicant’s brief and provide at least 35% of the site area as deep soil permeable surface area outside of the building footprint.

Rear garage and parking provision

58. The existing site has two crossovers, one at the rear from Hubbert Lane accessing a separate garage in the rear setback and one at the front from Darley Road accessing a driveway on the eastern side of the bungalow. In my view, the hard stand area proposed in the front setback, either as a level hardstand as initially proposal or following the existing fall of the driveway as offered as an alternative during closing submissions, is acceptable, as the crossover is existing.

59. The Council presses a contention regarding the excessive size of the proposed garage accessed from Hubbert Lane, which occupies the width of the site with 1200mm setbacks on each side from side boundaries and is 6.8m deep internally. The applicant proposes that the garage has two car parking spaces on the northern side of the structure, accessed via a manoeuvring area inside the garage door on the eastern side of the southern elevation of the proposed garage.

60. I accept the Council’s position that the size of the garage structure is very generous, however, considering the scale of rear lane structures in the area, I am satisfied that the configuration of the garage is broadly acceptable.

Impact of the proposal on the heritage significance of the North Randwick HCA

Evidence

61. The heritage experts agreed that the existing bungalow contributes to the heritage significance of the North Randwick HCA, notwithstanding that the North Randwick HCA does not include identified contributory items. According to Ms Simpson, the contribution or otherwise of an existing building or place is identified by the Heritage Impact Statement (HIS).

62. The statement of significance in the HIS (exhibit F) identifies the existing bungalow as contributory to the HCA, as follows:

The house at No. 107 Darley Road has representative stylistic features of an Interwar Bungalow style house in the form of the main section of the house under the principal roof, and is part of the pattern of Inter War building in the conservation area.

No. 107 Darley Road does not demonstrate sufficient heritage significance to warrant listing under the assessment criteria.

63. The HIS provides the following response in relation to how the proposal respects the heritage values of the North Randwick HCA:

The proposal retains the appearance of the existing house and its streetscape form and detailing. These elements will not be changed in the views from Darley Road. The front garden setting will not be changed. Views and vistas to No. 107 and the adjoining houses will not be affected by the proposed development.

The proposed design utilises a number of design devices to articulate the building. A linking section connects the house with the new section. The two levels of the new addition are defined by a change in materials ie rendered masonry on the ground floor and light weight paneling [sic] on the first floor, with further horizontal separation by a horizontal band of high lite [sic] windows.

64. In response to the original application (revision A), Ms Simpson made the following comments (exhibit 1, f 17):

Comments

The existing dwelling comprises a hipped terracotta tiled roof over five main rooms with a lower pitched terracotta tiled skillion over a rear laundry, wc and sunroom. Four rooms are accommodated at lower ground floor level. A large gable is provided over the front verandah and a side gable is centred on the chimneys. All but one window on each of the side elevations is to be removed.

Demolition of existing building fabric

The proposed addition will remove over half of [the] original pitched roof of the dwelling, including the side facing gable with central fireplaces and chimney, which terminates the splayed entry porch. The proposal removes over 2/3 of the original building fabric, with the remainder appearing as a single storey lean-to addition to a new three storey dwelling, completely devaluing its significance. Such contemporary additions are appropriate only where the entirety of the primary roof form is able to be retained.

65. In response to the amended proposal (revision C, exhibit A), Ms Simpson made the following comments (exhibit 1, ff 30-32):

Background

Concerns were raised in relation to the extent of demolition of original building fabric, the dominance of the proposed addition and the height and bulk of the elevated swimming pool and landscaped areas. A meeting was held to discuss these issues and amended drawings have now been received. As compared to the original proposal, the amended drawings retain a greater proportion of original building fabric. The height of the addition has also been reduced by around 0.5m At lower ground level, the size of the garage has been reduced and the pool plant and storage area replaced with undercover landscaped areas.

Demolition of existing building fabric

The amended proposal will remove around 36sqm of the rear section of original pitched roof of the dwelling (plus the skillion) retaining the edge of the west facing gable with central fireplaces and chimney, but replacing all original windows. A greater proportion of original roof is lost on the east facing elevation, resulting in an awkward junction between new and original fabric, marked by a strip of cement render. All windows but one on this elevation is [sic] to be removed. As compared to the original proposal, the amended proposal

66. It was Ms Simpson’s evidence that she provided conditions to be included in any consent in her memorandum, as she acquiesced to the amended proposal on the basis that it was, in her view, an improvement on the original proposal. It was also her evidence that she was unaware of an appeal in relation to the matter and was not consulted in regard to the drafting of the Statement of Facts and Contentions (exhibit 2).

67. The heritage experts agreed during concurrent evidence that a greater number of the original windows could be retained on the eastern and southern elevations of the original bungalow and the proposal was amended in accordance with their agreed evidence and tendered on the second day of the hearing (exhibit K).

68. According to Ms Simpson, when looking at the north-south section at 1:200 (Drawing DA:300 Rev C exhibit A), the contemporary addition ‘collides’ with the retained front section of the original dwelling and is a ‘brutal’ solution to updating the original bungalow. In her view, the proposal results in a significant impact on the form of the original bungalow.

Findings

69. I accept the agreement of the heritage experts that the existing modest bungalow retains a visual presence in the street and contributes to the historic character of the North Randwick HCA, as the external form and architectural character are intact, the bungalow is visible from the public domain, including, importantly, from Centennial Park and it makes a valuable contribution to the historic and aesthetic values of the North Randwick HCA and its collective significance.

70. Although Ms Simpson was comforted by the increased area of retained original external fabric in her written response to the amended plans (exhibit A), it is the applicant’s submission that the western gable will not be retained, but will be reconstructed following its demolition. The amount of original/early fabric being demolished in the exhibit K proposal has not significantly changed from the original application (revision A) and this is evident when comparing the demolition plan in the revision A plans and the demolition plan in the exhibit K plans.

71. I accept Ms Simpson’s evidence that the contemporary addition does not marry comfortably into the existing dwelling. I am not satisfied that retaining only the front two rooms and the entry porch would preserve the contributory value of the existing bungalow to the North Randwick HCA. I do not accept that the proposal retains the ‘appearance’ of the bungalow, as the form of the existing dwelling would be significantly compromised. The proposal has not dealt skilfully with the constraint of retaining the integrity of the existing bungalow and the proposal makes an inelegant and awkward transition between the old and new fabric.

72. The objectives of the heritage conservation cl 5.10 of LEP 2012 include at (b) to conserve the heritage significance of heritage conservation areas, including associated fabric, settings and views. This objective does not point to a requirement to simply retain a streetscape façade or the appearance of a contributory dwelling dating from a key period of the conservation area. In order to keep the roof structure, the form and the appearance of an older dwelling, it is necessary to retain more than the front two rooms of the bungalow. This does not preclude sympathetic alterations, including contemporary styled additions, with appropriate massing, scale, proportions, materials and details, and which marry into the original dwelling in a thoughtful and elegant way.

73. The proposed substantial demolition of the existing bungalow, identified by the agreed evidence of the heritage experts as being contributory to the heritage significance of the North Randwick HCA, would diminish both the historic and aesthetic values of the conservation area and its collective significance and the impact is of such consequence, the application should be refused.

Conclusion

74. The proposal does not adequately respond to the particular constraints of this site, including the presence and form of the existing contributory bungalow in a heritage conservation area and the fall of the site.

75. The proposal to elevate the outdoor living area for full length of backyard to correspond to the entry level of the site from Darley Road results in unacceptable visual bulk when viewed from adjoining properties. A 4.5m high screen and cabana roof structure, positioned adjacent to the shared side boundary with 105 Darley Road, is a significant and unacceptable imposition on the amenity of adjoining neighbours. The elevated outdoor living area would provide a viewing platform from which the residents of the proposal would be able to view the private open spaces of surrounding properties, including properties in Wentworth Street, which results in an unacceptable privacy impact on the amenity of neighbouring properties.

76. I am confident that the existing modest bungalow can be altered and added to in a sympathetic way to create a useful and attractive family home and this can be achieved in such a way as to retain the integrity of the existing bungalow and its contribution to the heritage significance of the North Randwick HCA. It is, however, not a project for all tastes and one must be cognisant of the constraints of a site when purchasing a home within a heritage conservation area. Any future application should be assessed with a flexible approach to numerical compliance and priority given to achieving a functional layout, with appropriate massing, scale, proportions, materials and details, which marry into the original bungalow in a thoughtful and elegant way.

Orders

77. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 418/2014 for alterations and additions to an existing dwelling at 107 Darley Road, Randwick, is refused.

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

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Susan O’Neill

Commissioner of the Court

Decision last updated: 14 July 2015