David White Architects Pty Limited v Ku-ring-gai Council
[2004] NSWLEC 169
•04/16/2004
Land and Environment Court
of New South Wales
CITATION: David White Architects Pty Limited V Ku-ring-gai Council [2004] NSWLEC 169 PARTIES: APPLICANT
RESPONDENT
David White Architects Pty Limited
Ku-ring-gai CouncilFILE NUMBER(S): 11523 of 2003 CORAM: Watts C KEY ISSUES: Development Application :- Alterations and additions to existing dwelling
and
The impact of the proposal on the heritage significance of the item
LEGISLATION CITED: CASES CITED: Ku-ring-gai Planning Scheme Ordinance as amended, ;
(Heritage LEP);
Ku-ring-gai Development Control Plan, (DCP);
Heritage Conservation in Ku-ring-gai-Gudelines for development, (Guidelines);
Environmental Planning and Assessment Act 1979 ss 79C and 97DATES OF HEARING: 01/04/04 DATE OF JUDGMENT: 04/16/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr S Kondilios, solicitor instructed by
Glendinning Minto & Associates Pty Ltd
SOLICITOR
Maddocks
Mr R K Graham, solicitor
SOLICITOR
Abbott Tout
JUDGMENT:
JudgmentDavid White Architects Pty Limited
v
Ku-ring-gai Council
2 I visited the land in company with the parties on the morning of the hearing and an amended proposal was discussed between the parties.
3 I have concluded that the amended application has been found satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979 .
The land
4 The land is situated on be southwestern corner of Hastings Road and Cherry Street, Warrawee. The land is rectangular in the shape with a frontage to Hastings Road of 35.560m excluding the corner rounding, 41.150m to Cherry Street excluding the corner rounding, a southern boundary of 43.055m, a western boundary of 48.770m and an area of some 2,072m2. Erected upon the three allotments of land is a single-storey masonry Federation residence was formerly known as "Llanberris”. On the two western allotments is located a tennis court oriented north/ south. The council has listed the existing dwelling for about 15 years.
5 Nearby dwellings are erected on large allotments of land and set back from the road and screened from view by trees, shrubs and other vegetation.
Relevant planning controls
Ku-ring-gai Planning Scheme Ordinance as amended, (Heritage LEP)
6 Under the provisions of the KPSO as amended by the Heritage LEP the land is zoned residential and listed as an heritage item under the Ku-ring-gai Heritage Study.
Ku-ring-gai Development Control Plan, (DCP)
7 Under the DCP certain provisions affect the development of listed properties.
Heritage Conservation in Ku-ring-gai-Guidelines for development, (Guidelines)
8 The guidelines seek to promote an understanding of the council's objectives and policies for heritage conservation. It is intended to assist homeowners and ratepayers whose properties have been identified as items of heritage significance.
The proposal and its history
9 Development application No 955/03 was lodged with the respondent council on 29 July 2004 to the erect an attic-study within the roof space of the existing dwelling. A clerestory connecting roof element is proposed to the attic. The proposed clerestory element is located on the eastern elevation between northern and southern roofs and would be visible from the street through the fringing trees. The proposed materials to be used for the walls of the extension would be characteristic of the southern alterations and additions and are proposed to include timber windows with painted weatherboards. The roof material would match the existing comprising terracotta shingles for the dormer and ‘Colorbond’ roof sheeting for the clerestory.
10 The original proposal is described in plans prepared by David White Architects Pty Limited Drawings No 1 to 5 Issue A, dated June 2003 and lodged with Council on 30 July 2003.
The council’s decision
11 When the appeal was filed the council had not formally determined the application and hence it is a deemed refusal.
The hearing
12 The appeal was filed on 11 December 2003.
13 At the hearing the court heard evidence on behalf of the respondent council from:
- · Mr D Logan, heritage consultant.
- · Mr L Tropman, heritage consultant.
The issues
15 On 30 January 2004 the council filed a statement of issues.
Particulars1. Whether, in accordance with clause 61D(2) of the Ku-ring-gai Planning Scheme Ordinance , the carrying out of the proposed development affects the Heritage significance of the item.
· the clerestory is visible from Cherry Street and Hastings Road.
2. The public interest in so far as it relates to the maintenance of listed heritage items in the manner and form as represented by the heritage item at the time of its listing.· The clerestory detracts from the simplicity of the heritage item.
The evidence and findings
The impact of the original proposal on the heritage significance of the item
17 Mr Logan for the council considered the proposal would have an adverse impact on the character of the heritage item and would make it extremely difficult for members of the public to understand the essence of the item. He considered the application would fail to comply with a number of objectives and controls contained within the council's planning instruments and guidelines. He also considered that the potential heritage impacts had not been adequately considered and the proposed additions would be inconsistent with the streetscape and would appear excessively large and uncharacteristic.
18 Mr Tropman for the applicant considered the proposed works to be sympathetic to the character of the existing house and would maintain the existing single-storey Federation façade. He considered the proposed new south wing would read as a later addition to the original house and would appear sympathetic and seamless. Prior to any works being carried out Mr Tropman suggested that the house should be recorded and the hierarchy of the floors be maintained through a modulation of the facade.
19 The council's concerns were resolved through further conferencing.
22 The amended plans prepared by David White Architects Pty Limited, reference No Drawings No 1 to 5, Issue B, dated June 2003, amended April 2004, and filed with the Court on 8 April 2004, in Exhibit C, address the only issue and ameliorate the visual impact of the linking roof. As there was no issue remaining between the parties there would be no reason to refuse the application, which has been found otherwise to be satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979 .Amended plans
20 On the site inspection, on 1 April 2004, the applicant agreed to amend the plans to contain the stair and linking corridor mainly within the existing roof to the south of the main roof. This would effect a lowering in height of the linking roof from that which was proposed and would eliminate the clerestory roof. Thus the adverse streetscape impacts would be ameliorated and the parties agree the proposal would be then satisfactory.
21 The Court noted the agreement of the parties:
· Applicant to provide four copies of the amended plans to the council by 6 April 2004;
· Applicant to file amended plans with the Court with the consent of the respondent requesting the appeal to be upheld by 8 April 2004;
· Adjourn the proceedings, to chambers for the matter to be determined on the papers.
· Liberty to apply with 48 hours notice.
23 For the above reasons, the appeal is upheld.
Conditions
24 The conditions are those in Exhibit 1. As there was no dispute between the parties concerning the conditions these have been attached to the consent with Condition 1 referring to the amended plans.
Orders
25 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.2. Development application No 955/03 lodged with the respondent council on 29 July 2004 to the erect an attic-study within the roof space of the existing dwelling at Lot 1 DP 772740, Lot 2 DP 960969 and Lot 3, DP 166594 being No 22 Hastings Road, Warrawee, is approved subject to Conditions 1 to 24 in Annexure A.
S J Watts3. The exhibits with the exception of Exhibits B, C, 1 and 3 are returned.
Commissioner of the Court
sw
David White Architects Pty Limited
v
Ku-ring-gai Council
GENERAL CONDITIONS
1. The development to be in accordance with Development Application No 955/03 and Development Application plans prepared by David White Architects Pty Limited, reference number Drawings No 1 to 5 Issue B, dated June 2003, amended April 2004, and filed with the Court on 8 April 2004, in Exhibit C.
2. All building works shall comply with the Building Code of Australia.
3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority's By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.
4. The works set forth in the plans and specifications and approved under this consent, once commenced, shall be completed within two (2) years from the date of commencement.
5. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and an Occupation Certificate has been issued.
6. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.
7. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.
8. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.
- Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.
9.
For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.
10. A sign shall be erected in a prominent position on the site, which states the name and contact details of the Principal Certifying Authority.
11. The applicant is advised that the Construction Certificate plans and specifications must comply with the provisions of the Building Code of Australia.
12. For the protection of the health and safety of occupants, workers and the environment, any person renovating or demolishing any building built before the 1970's should be aware that surfaces may be coated with lead-based paint. Lead dust is a hazardous substance. Persons are required to follow the attached recommended guidelines to prevent personal and environmental contamination.
13. The additions/ alterations forming the subject of this application have been considered on the basis that they are an extension or alteration of the existing single dwelling house of which they form part and are NOT for the purposes of providing for an additional occupancy in contravention of the provisions of the Ku-ring-gai Planning Scheme Ordinance 1971.
CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE
14. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.
15. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).
16.
The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/ developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/ developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.
CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING
17. So as to minimise glare, the roof is to be of subdued colour, which is compatible with the surrounding environment. A schedule of external finishes is to be submitted to and approved by the Council prior to the commencement of work.
18. External finishes and colours are to be sympathetic to the surrounding environment. Samples of materials and finishes are to be submitted to and approved by Council prior to the commencement of work.
CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION
19. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and. any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations.
BUILDING CONDITIONS
20. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.
a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Wind bracing details complying with AS 1684-1992 National Timber Framing Code, AS 1170.2-1989 Wind Load Code or AS 4055-1992 Wind Loads for Housing Code.
c. Upper floor joist details, engineered or complying with AS 1684-1992 National Timber Framing Code.
d. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.
21. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages:
- a. Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering.
b. The completed structure prior to occupation.
- The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development.
If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117.
Note: Inspections of work, which is found to be defective or not ready, will attract a reinspection fee. Please cancel bookings, which will not be ready for inspection.
22. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mrn. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.
23. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:
- Risers: Maximum 190mm Minimum 115mm
Going (Treads): Maximum 355mm Minimum 240mm
Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.
24. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements:
- a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or
b. Smoke alarms which:
i. comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and
ii. are connected to the mains and have a standby power supply; and
iii. are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions.
To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority.
S J Watts
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