D R Wyllie v Burwood Municipal Council

[2003] NSWLEC 294

>

Land and Environment Court

of New South Wales

CITATION:

D R Wyllie v Burwood Municipal Council [2003] NSWLEC 294

PARTIES:

APPLICANT:
D R Wyllie

RESPONDENT:
Burwood Municipal Council

FILE NUMBER(S):

10723 of 2003

CORAM:

Watts C

KEY ISSUES:

Development Application :- Demolition and subdivision
SEPP 1 objection to the frontage standard of cl 78P of the BPSO as amended by BLEP56
Character of the area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, ss 79C and 97
Burwood Planning Scheme Ordinance, (BPSO)
Burwood Local Environemtnal Plan No 56, (BLEP56)

CASES CITED:

DATES OF HEARING:

20/11/03 - 21/11/03

DATE OF JUDGMENT:

12/03/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr C McEwen, barrister instructed by
Mr J Boyd, solicitor
of Cameron Gillingham Boyd

RESPONDENT:
Mr C J Leggat, barrister instructed by
Ms L Finn, solicitor
of Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10723 of 2003

Watts C

3 December 2003

D R Wyllie

Applicant
v

Burwood Municipal Council

Respondent

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Burwood Municipal Council (the council) to refuse a development application to demolish a two-storey building and to subdivide the land into five (5) allotments at Lot 6 in DP749131, being No 23 Weldon Street, Burwood, and Lot 5 in DP749131, being No 2 Wyatt Avenue, Burwood.

2 I visited the land in company with the parties on the morning of the first day of the proceedings.

3 I have concluded that the application to demolish ‘Weldon Lodge’ and to subdivide the land should fail as approval would not result in orderly or economic use of land or be in the public interest.

The land

4 The land is situated on the southwestern corner of Wyatt Avenue and Weldon Street. It has a frontage of 81.485m to Weldon Street and 41.35m to Wyatt Avenue, and an area of about 3,369.40m2. The land has a cross-fall of about 4m from the southeastern corner to the northwestern corner.

5 A number of large trees, located near the streets, grace the land. Existing driveway crossings are found in both Weldon Street and Wyatt Avenue.

6 The land comprises two allotments, being:

• Lot 6 in DP749131, being No 23 Weldon Street, is about 53m x 41m with an area of about 2,160m2, and encloses a substantial two-storey brick building erected in about 1910, known as ‘Weldon Lodge’. This building has been extended and modified and is used as a childcare centre for up to 19 children and out of school hours care for 54 children.
• Lot 5 in DP749131, being No 2 Wyatt Avenue, is about 28m x 41 m with an area of about 1233m2, and encloses a single-storey brick building that is used as a youth centre.

7 Nearby land uses and zonings are:

• To the west of the land in Wyatt Avenue is a townhouse development within a Residential 2(b1) zoning.
• To the east and south of the land are single-storey and two-storey dwelling houses within a Residential 2(a) zoning.
• To the north of the land, most of Wyatt Avenue is a Residential 2(b1) zoning that contains a mixture of dwelling houses and townhouse developments. To the north in Weldon Street and part of Wyatt Avenue there are dwelling houses in a Residential 2(a) zone.
• Wyatt Avenue is mostly zoned Residential 2(b1), which is a different zoning than Weldon Street.
• Weldon Street is a connection between Burwood town centre and the Hume Highway.

Relevant planning controls

a Burwood Planning Scheme Ordinance, (BPSO)

8 The land is zoned Residential 2(a) under the provisions of the BPSO and is located near the Appian Way Conservation Area.

9 ‘Weldon Lodge’ is not a locally listed heritage item under the BPSO, however, it is within the National Trust Appian Way Urban Conservation Area and is considered by the National Trust to contribute to the integrity of that area.

10 The Residential 2(a) zone is a dwelling house zone and childcare facilities are permitted. Residential flat buildings (except for aged persons) and boarding houses are not permitted.

11 Clause 52 of the BPSO states:

Clause 52: Dwelling Houses on Minimum Site Areas
1. Except as provided by subclauses (3) and (4), a dwelling house shall not be erected on an allotment within Zone No 2(a), 2(b 1), 2(b2), 2(c 1) or 2(c2) unless…
(a) where the allotment is hatchet-shaped, it has no area of not less than 660 m2; or (b) where the allotment is not hatchet-shaped…
(i) it has an area of not less than 560m2 and
(ii) it is not less than 15m wide at the front alignment of the dwelling house.

2. For the purposes of subclause (1)(a), the area of an access corridor shall not be taken into account in computing the area of a hatchet-shaped allotment.

3. The responsible authority may consent to the erection of a dwelling house on an allotment within Zone No 2(a), 2(b1), 2(b2), 2(c1) or 2(c2) if the area or the width of the site or the access corridor as the case may be, departs to only a minor extent from an area or width prescribed in subclause 1(a) or (b).
A dwelling house may be erected on a property, which is specified in Column 1 of Schedule 6 and which comprises the land described opposite thereto in Column 11 of that Schedule.

b Burwood Local Environmental Plan No 56, (BLEP56)

12 Under the provisions of the BLEP56, on land within the Residential 2(a) zone, subdivision is permissible with consent. The aims of BLEP56, which amends the BPSO, are:

(a) to introduce development standards for subdivision of land within the Residential 2(a) zone of the Burwood Planning Scheme Ordinance that are consistent with the standards relating to the erection of dwelling houses, and

(b) to prohibit subdivision (including strata subdivision) of land within the Residential 2(a) zone that contains dual occupancy dwellings.

13 Clause 78P of the BLEP56 provides development standards for subdivision:

1. This clause applies to land within Zone No 2(a).

2. Land to which this clause applies must not be subdivided unless each separate allotment created by the subdivision:
(a) in the case of a hatchet-shaped (battleaxe) allotment:
i. has an area of not less than 660m2 (exclusive of the access corridor), and
ii. has an access corridor not less than 3.6m wide, and
(b) in any other case:
(i) has an area of not less than 560m2 and
(ii) is not less than 15m wide at the front alignment of any dwelling to be erected on the allotment.

3. Land to which this clause applies must not be subdivided unless each separate allotment created by the subdivision has a boundary facing onto a public road.

14 Clause 78Q of the BLEP56 states:

Consent must not be granted for a subdivision (including a strata subdivision) of an allotment within Zone No 2(a) that creates separate allotments for each of the two dwellings resulting from a dual occupancy development.

The proposal and its history

15 Development application No 207/2002 was lodged with the respondent council on 11 July 2002.

16 It is proposed to demolish ‘Weldon Lodge’ and to subdivide the land into five (5) allotments:

• Proposed Lot 1 - (corner of Weldon Street and Wyatt Avenue) - Area 1,133m2 with frontage of 27.48m to Weldon Street and 41.35m to Wyatt Avenue. This site would contain the existing single-storey building used for the youth residential program.
• Proposed Lot 2 - Area 560m2 and frontage 13.5m.
• Proposed Lot 3 - Area 560.1m2 and frontage of 13.5m.
• Proposed Lot 4 - Area 560.6m2 and frontage 13.5m.
• Proposed Lot 5 - Area 561.3m2 and frontage 13.5m.

17 The area of all allotments complies with the standard under cl 78P of the BLEP56 of 560m2 but the frontages would be deficient.

Amended proposal

18 During the proceedings the subdivision proposal was amended such that only three (3) new residential allotments would be created namely Lots 3, 4 and 5. The applicant now proposes that Lots 1 and 2 would be combined to provide the future childcare facilities.

State Environmental Planning Policy No 1 objection, (SEPP1)

19 A State Environmental Planning Policy No 1-Development Standards, (SEPP1) objection to this standard was lodged in respect of the amended proposal against the 15m-frontage standard of cl 78P of the BPSO as amended by BLEP56, (Note: Exhibit D]. SEPP1 allows for flexibility in the application of development standards.

Notification

20 The original application was notified to nearby owners and occupants and the council received five (5) submissions. Concerns were primarily directed at the demolition of ‘Weldon Lodge’ and included submissions from the National Trust and the Burwood and District Historical Society.

The council’s decision

21 Despite a recommendation of its officers for approval, by notice dated 6 May 2003, the council refused the original application for the following reasons:

1. The inadequate assessment of the heritage values of Weldon Lodge.

2. The importance and significance of the Appian Way Conservation Area.

3. The width of the frontages of the new lots is considered to be inadequate and contrary to the provisions of Clause 78P of Local Environmental Plan No 56.

The hearing

22 The appeal was filed on 24 June 2003.

23 At the hearing the court heard evidence on behalf of the respondent council from:

• Ms J M Hill, architect and heritage consultant, [Note: Exhibits 2 and 9 Statement of evidence and reply; co author of two joint statements Exhibits 7 and 10]

24 Mr M Sue, town planner of Burwood Council, who prepared a statement of evidence in regard to the planning implications of the proposal was not required to give oral evidence.

25 On behalf of the applicant evidence was given by:

• Mr P A Rappoport, architect and heritage consultant, [Note: Exhibit E and F; statement of evidence and reply and co author of two joint statements Exhibits 7 and 10].

26 Messrs B Threlfo, consultant town planner, and D R Wyllie, architect, prepared statements of evidence and were not required for oral evidence.

27 On 30 July 2003 the council filed a statement of issues.

1. Whether the SEPP1 objection to the development standards contained in clause 78P of LEP 56 [ Burwood Planning Scheme Ordinance] in respect of the minimum frontage for the new lots is well founded.

2. The inadequate assessment of the heritage values of the existing building known as Weldon Lodge.

3. The contribution of Weldon Lodge to the National Trust listed Appian Way Conservation Area.

4. The inadequate widths of the frontages of the new allotments and non-compliance with the provisions of clause 78P of Local Environmental Plan No 56.

5. Issues raised by resident objectors.

6. Circumstances of the case.

7. The public interest.

28 The following emerged as the salient issues in respect of demolition and subdivision:

• SEPP1 objection to the frontage standard of cl 78P of the BPSO as amended by BLEP56; and character of the area.

The evidence and findings

c SEPP1 objection and character of the area

29 I am required to determine whether the SEPP1 objection is well founded and whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. To assist me in this, I have considered the evidence and submissions. Mr Threlfo prepared the SEPP1 objection in respect of the amended subdivision proposal, [Note: Exhibit D].

30 The 15m-minimum lot width specified in cl 78P of the BPSO, as amended by BLEP, is clearly a development standard for the purposes of SEPP1.

31 The underlying objects or purposes of the frontage standard identified by Mr Threlfo was those found in Council's Single Dwelling House Code, which are:

• To ensure that good urban design principles are utilised;
• To ensure that quality building work is achieved with proper design, materials and workmanship;
• To ensure that a safe locality and pleasant environment is provided for Burwood's residents;
• To provide and preserve attractive streetscapes by ensuring that building work integrates with surrounding development;
• To ensure that new building work is visually compatible with the existing or identified future character of the locality.

32 The underlying object would perhaps be better described as that frontage width that would enable the character of the area to be maintained. Mr Threlfo stated, concentrating on the dwellings likely to be placed on the subdivided allotments, [Note: Exhibit D p 2]:

[The] …minimum width for a lot to contain a dwelling house would be:
• To enable an adequately sized dwelling house to be constructed on the land. An adequately sized dwelling would contain rooms of a suitable size for their purpose, side setbacks and side windows for light and ventilation.
• To enable offstreet parking to be provided behind the front building line, at the side of a dwelling or at the rear via a side driveway.
• To provide adequate separation from dwellings and open space areas on adjoining lots, to avoid overshadowing of adjoining properties and landscaping opportunities.
• To provide a building which is consistent with the prevailing streetscape.

33 Mr Threlfo concluded that strict compliance with the lot width of 15m is unreasonable and unnecessary for the following reasons:

• The width of the allotments will enable new houses to have a form and scale that is consistent with the Federation period housing stock on nearby lots in Weldon Street and Wyatt Avenue;
• Lots with a width of 13.5m will enable new dwellings to be erected which will satisfy the general objectives of Council's Single Dwelling House Code;
• Lots with a width of 13.5m will enable new dwellings to be erected which will satisfy the design controls in Council's Single Dwelling House Code;
• Strict compliance with the 15m-lot width would reduce the land area for the childcare facilities by 186m2. This reduction in site area will compromise the design of the future childcare facilities; and
• The built form of the locality does not indicate that there is an established relationship between lot width and quality of built form.

34 He considered the objection to be well-founded because:

• the proposed lots have a width that is consistent with the predominant lot size in the locality;
• new dwellings on the lots will satisfy the general objectives of Council's Single Dwelling House Code; and
• new dwellings on the lots will satisfy the design controls in Council's Single Dwelling House Code;
• it would be unreasonable to require strict compliance when the objectives and controls for new dwellings can be easily complied with.

35 Mr McEwen submitted that as at least half of the properties nearby have frontages of 13.5m or less, that the proposal would be consistent with the subdivision pattern nearby.

36 It is not sufficient to point to a number of properties nearby with frontages in the range of that proposed as there are almost as many properties with frontages in the range of those in the BPSO of 15m. Those sites immediately adjacent and nearby to the south of the land on the western side of Weldon Street have larger frontages than 15m.

37 It is also not sufficient to point to absence of environmental harm to support an SEPP1 objection.

38 There is nothing unusual about the land or its topography that would require lots of 13.5m frontage rather than a frontage width required by the standard. That the applicant could have complied with the standard for frontage width was not in dispute.

39 Mr Sue concluded that the SEPP1 objection was not well founded and he stated, [Note: Exhibit 1 pp 4-5:

SEPP No 1 requires an objection to specify the grounds that compliance with the development standard is unreasonable or unnecessary. A consent authority, in considering the SEPP No 1 Objection, needs to be satisfied that the objection is well-founded, having given consideration that the objective of the development standard, planning objectives of the locality, the cumulative effect of similar approvals and any State or Regional matters.

The survey prepared by Starr Surveying Services Pty Ltd dated 1 May 2002 shows that properties in the immediate vicinity of the site have frontages greater than the minimum 15m.

The frontages of properties immediately to the south of the subject site, and to the east across Weldon Street, with the exception of No 44, are greater than the minimum 15m required under Clause 78P of Burwood Planning Scheme Ordinance, 1979. The proximity of these properties to the site and the subdivision pattern formed is considered the most appropriate for the future built environment, notwithstanding the reduced frontages of other properties.

It is considered that the proposed subdivision should not have frontages below the minimum required and therefore the SEPP1 objection is not considered well founded and is not supported.

The preferred option, in terms of the frontage width, is for a 4-lot subdivision of the subject site, with lots 2, 3 4 and 5 being subdivided into 3 allotments having a frontage of 18 each. This better reflects the subdivision pattern and character of the area.

40 Ms Hill suggested that the wider frontage width of the standard, compared with the 13.5m-frontage proposed, would enable buildings to be erected that would be more in character with the area.

41 Contrary views to those of Ms Hill were expressed by Mr Threlfo who was of the opinion that lots of width of 13.5m will be able to provide a side driveway to a garage behind the front building line and meet all the criteria of the Council’s single dwelling house code.

42 I accept the evidence of Ms Hill and Mr Sue and I am satisfied that the character of the area would be better maintained were the frontage width standard of 15m maintained. Thus, I am satisfied that the SEPP1 objection against that frontage standard of cl 78P of the BPSO as amended by BLEP56, is not well founded and that compliance with the standard is not unreasonable or unnecessary in the circumstances of this case. As a result the subdivision application is refused consent.

43 The parties agreed that the issues of demolition and subdivision were severable; hence it is necessary for me to consider the demolition of ‘Weldon Lodge’ separately.

d Demolition of ‘Weldon Lodge’

44 During the site inspection, I satisfied myself that ‘Weldon Lodge’ has greater architectural merit and better blends with the character of the Appian Way Conservation Area than many of the modern buildings that have been erected nearby. The parties agreed that the western unsympathetic extension of ‘Weldon Lodge’ does not detract from the significance of the 1912 building, [Note: Date on foundation stone]. So regardless of its heritage significance of ‘Weldon Lodge’, I would not consent to its demolition before considering its reasonable replacement. Such a replacement is not before the Court, and it thus seems premature to allow demolition at this time. As well I am also satisfied that ‘Weldon Lodge’ has some architectural and historic interest.

45 It is accepted, that the Court in considering an application before it, need only be satisfied that the proposal, reasonably meets all the planning requirements of the consent authority and is an application that otherwise merits approval under the EPA Act. However, where the demolition of a building of some architectural and historic merit is being considered, the Court needs to be satisfied that its demolition would not tend to hinder the achievement of the aims of the EPA Act, including the orderly and economic development of land and being in the public interest. The demolition of the building should not be taken lightly as there are community resources stored in the building that would be wasted if the building were to be demolished.

46 In Michael Hesse v Parramatta City Council [2003] NSWLEC 313 The Senior Commissioner Dr J Roseth stated:

I accept that in most cases of adaptive re-use there is a saving of resources, because building materials, and the energy used in producing and erecting them, are used for a second time. Saving resources is one element of ecologically sustainable development, the promotion of which is one of the aims of the EPA Act. However, the saving of resources occurs only in comparison with a similar proje ct that would demolish the existing building and construct a new one, not in comparison with the project not occurring at all. If, for example, a soup kitchen were converted to a TAB betting office, few people would think that the saving in building materials was sufficient reason to consider that the conversion was in the public interest. Similarly, if a building that is generally regarded as ugly and out of context were given a new lease of life by adapting it to a more profitable use, most people would consider the conversion undesirable because it prolonged the building’s life. In my opinion, to be in the public interest, an adaptive re-use project must have an element of public benefit apart from resource conservation. One or more of the following circumstances must be present :

• the building is of historical or heritage value;
• the building is attractive and fits into its urban design context;
• the building is much loved by the community;
• the new use serves the public interest better than the existing use.

47 In the present case, Ms Hill gave evidence that ‘Weldon Lodge’ has sufficient historical or heritage value to warrant it being listed as a local item with a category ‘C’ when assessed under the Heritage Council’s “NSW Heritage Assessment Criteria”, [Note: Exhibit D]. Mr Rappoport agreed with Ms Hill that it does have “…moderate historic significance”, [Note: Exhibit 10 point 1]. I accept the evidence of Ms Hill and have concluded that ‘Weldon Lodge’ has some historical or heritage value and there would be public benefit in retaining it.

48 The evidence of Ms Hill that ‘Weldon Lodge’ is attractive and fits into its urban context of Wyatt Avenue and is near the Appian Way Heritage Conservation Area also persuades me. As submitted by Mr Leggat, based on the evidence of Ms Hill, who carried out the necessary research, I am satisfied that ‘Weldon Lodge’ was:

• designed by Mr Joseland a well known architect;
• constructed in a key period of significance;
• associated with a “…significant institution within the history of the Church of England in Australia”;
• a model upon which subsequent orphanages were based;
• and remains within the Appian Way Urban Conservation Area of the National Trust;
• and remains a contributing component of that conservation area;
• and remains highly intact; and
• the additions and alterations are not apparent from the street.

49 There is little evidence that ‘Weldon Lodge’ is much loved by the community. The National Trust was moved to oppose its demolition. This might suggest that the wider community holds it in high regard. The National Trust by letter dated 27 August 2002, [Note: Exhibit 6 Tab 9] defined contributory buildings and indicated that ‘Weldon Lodge came into this category:

…characteristic of the area’s period of development. Contributory buildings are the very fabric, which makes urban conservation areas significant, and the demolition of such buildings detracts from the significance of the greater area.
The existing building at 23 Weldon Street makes No 23 Weldon Street makes a significant contribution to the Appian Way precinct, and the Trust strongly believes that it should not be demolished. Its importance as a contributory building in an area of uniformity of housing style, form and architectural detail gives the area an harmonious appearance and is most notable in the streetscape integrity, due to the established nature of the well-landscaped gardens and street planting.

50 Also the Burwood and District Historical Society objected to its demolition by letter dated 13 August 2002, [Note: Exhibit 6 Tab 6].

51 There is little evidence in this case, involving both demolition and subdivision, that the new use would serve the public interest better than the existing use. In Cox Richardson v Council of the City of Sydney, Watts A, LEC Appeal No 10138 of 1998, 16 June 1998 ‘Chatsworth House’ in Wylde Avenue, Potts Point, was allowed to be demolished in circumstances where the density of development was greater after than before. Here, there would be little difference in the development potential after as before and the same allotment yield would be likely to apply. Mr McEwen submitted that three lots of either 13.5m (as now proposed) or 15m frontage might result if the youth centre on the northern part of the site were demolished and the child care centre erected on proposed Lots 1 and 2 as indicated in the amended proposal. Such a proposal would result in four allotments.

52 I am satisfied that before ‘Weldon Lodge’ is demolished, the applicant should consider other options for subdivision that would enable the existing building and perhaps its extensions to be renovated and retained. It might be appropriate for a master plan be prepared to confirm this. The demolition of the youth centre would greatly enhance the site-planning options of the land. If the northern part of the land were available for subdivision, the need to demolish ‘Weldon Lodge’ on the southern part might be obviated and still yield four allotments.

53 For the reasons outlined above, I am satisfied that the character of the area would be more likely to be maintained and enhanced were ‘Weldon Lodge’ retained. It is an institutional building erected around 1912, has been used for institutional uses for most of its lifetime and forms part of the character of the area. The case in support of its demolition has not been made out. I thus refuse approval to demolish ‘Weldon Lodge’, as under s 5 of the Act, as I am satisfied it would not be orderly or economic development of land or in the public interest to do so at present.

54 For the above reasons, the appeal is dismissed.

55 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. The State Environmental Planning Policy No 1 objection to the frontage standard of cl 78P of the Burwood Planning Scheme Ordinance is not upheld, as compliance with the standard is not unreasonable or necessary in the circumstances of this case.
3. Development application No 207/2002 lodged with the respondent council on 11 July 2002, to demolish a two-storey building and to subdivide the land into five (5) allotments at Lot 6 in DP749131, being No 23 Weldon Street, Burwood, and Lot 5 in DP749131, being No 2 Wyatt Avenue, Burwood, is refused consent.
4. The exhibits with the exception of Exhibits A and 8 are returned.

S J Watts