Demlakian Consulting Engineers v Ku-ring-gai Council
[2010] NSWLEC 1035
•23 February 2010
Land and Environment Court
of New South Wales
CITATION: Demlakian Consulting Engineers v Ku-ring-gai Council [2010] NSWLEC 1035 PARTIES: APPLICANT
RESPONDENT
Demlakian Consulting Engineers
Ku-ring-gai CouncilFILE NUMBER(S): 10909 of 2009 CORAM: Dixon C KEY ISSUES: HERITAGE :- Fence LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 19 February 2010
DATE OF JUDGMENT:
23 February 2010LEGAL REPRESENTATIVES: APPLICANT
Mr T Howard (barrister)
SOLICITOR
Wilshire WebbRESPONDENT
Ms M-L Taylor (soliticitor)
SOLICITOR
Bartier Perry
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESDixon C
10909 of 2009 Demlakian Consulting Engineers v Ku-ring-gai Council23 February 2010
This determination was given extemporaneously
and has been edited prior to publication
JUDGMENT
1 This development appeal pursuant to section 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) concerns consent for the modification and (retrospective approval) of the front fence erected on the applicant’s heritage listed site at 26 and 26A Wattle Street Killara.
2 The appeal-commenced onsite as a section 34-conciliation conference and this facilitated the resolution of all of the issues raised by council accept whether the sandstone piers as built should remain. The parties have asked me to terminate the conference and finally determine this issue.
3 Having had an opportunity to view the site and surrounding area and consider the written and oral evidence of the parties together with the relevant matters in section 79C of the EPA Act I have determined that the sandstone piers as constructed are to remain subject to the agreed modification. I set out the reasons for my decision below.
- Background
4 The site is rectangular in shape and is predominately flat but has a gentle cross fall sloping from east to west. The block has a 40.2 m frontage to Wattle Street and setback from that street frontage is a large federation house with a U shaped driveway with dual access. The frontage also contains a fountain with landscaping and a partly constructed sandstone and cement pier fence that flows the slope of the land.
5 The original sandstone front fence of the property is identified as a Heritage Item within Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO). However, all that remains of that fence is the sandstones and the rail. The applicant has adapted and reused the original sandstones to face the new cement and pier fence. According to the evidence he also intends to restore (and where necessary replicate) the original wrought iron rails and secure them between the newly erected piers.
6 Council has not approved the fence as erected by the applicant and says it has been built in contravention of condition 83 of consent DA/1025/00. The applicant has lodged this application to obtain retrospective approval for those works to the fence (although I note the evidence discloses that there has been a succession of modification applications to the original council approval).
Council’s evidence
7 Council relies on the expert opinion of Mr Dignam its heritage consultant and the relevant planning controls in KPSO It refers me to clause 61D-Development of Heritage Items and submits the modified and proposed fence is likely to have an adverse impact on the heritage significance of the site. Condition 83 of the council’s consent which required the applicant to erect a front fence “in exactly the same manner ‘ as that which previously existed to maintain the identified character, significance and importance of the heritage item. The council asks the court to require the applicant to demolish the piers (in addition to the other agreed modifications.
8 In submitting that the modified fence, particularly the height of the piers and the infill walls are excessive and not consistent, or reflective of, the surrounding streetscape’s character, Council says it is contrary to the Aims in 1(a) and (b) set out in the KPSO and the objectives defined in section 4.5 –Front fences and Section 4,2,15 External Finishes of DCP No 38 – The Residential Design Manual.
9 After viewing the site and surrounding front fences and considering the photographic records commissioned by the applicant during the demolition of the original fence; I accept that the new fence as built is not of the original design and I appreciate council’s evidence that the historic fabric and patina of the former front fence has been lost to some extent. However, I note the experts agree that the wrought iron rail (that has been preserved and is to be reinstated) is arguably the most important aspect of the heritage significance of this particular front fence.
10 Despite that fact Council’s position is that the fence as erected competes with, as opposed to integrating into, the presentation of the Heritage item to the streetscape and that it is unreasonable for the fence as erected with piers to remain. Council would prefer that the wrought iron rail be reinstated as originally designed to run across the top of the fence and secured by footings.
11 In seeking this modification Council accepts that the removal of the priers will require substantial reconstruction of the fence and substantial expense to the applicant but says that in the circumstances such work and expense is reasonable because the applicant was told by council officers to stop building in November 2009 but elected to continue to build until December 2009.
Applicant’s evidence
12 Mr Stass in his report Exhibit B notes that the KPSO describes the site as a Heritage Item and its significance as being: “historic, scientific, architectural, municipal significance Note: fine garden & fence.”
13 Mr Stass’s expert opinion is that although the new fence departs from the original design in some details it maintains the use of the original stone and will incorporate the cast iron railings in a similar manner to the original work. His evidence is that the design accommodates the poor condition of the stonework and cast iron and safe guards against vandalism and further deterioration of the Heritage Item .In his opinion the result is a fence which is compatible with the established character of the surrounding streetscape and similar to stone fences in Powell and Wattle street and he judges it will not have an adverse impact on the streetscape.
14 Furthermore, Mr Stass’s evidence is of the opinion that the fence which steps across the site is appropriate when viewed from a distance in the streetscape, and with the hedge backing is no more dominate than other fencing in the streetscape.
15 Mr Stass agrees with Mr Dignam that the original decorative metal panels should be reinstated but they can be installed between the existing stone piers without any adverse impact on the heritage Item and streetscape.
16 The applicant has agreed to make a number of modifications to the fence to address council’s concerns but asks the court to allow the piers to remain because this design provides for a secure fence and discourages vandalism of the wrought iron. The applicant submits that the emails it tenders evidences their dialogue with council about the fence design and submits that it was unaware that eh did not have council approval but thought that Mr Digby had given them the requisite approval.
Conclusion
17 I accept the evidence of the council that the applicant must make a number of changes to the erected fence to ensure that it fits better with the existing streetscape and to ensure the integrity of the heritage significance of the heritage item is maintained. To that end the applicant has agreed to carry out certain modifications including the removal of the capping and the lowering of certain piers near the gate, construction of gates acceptable to council’s heritage officer and the removal of the cement balls.
18 Having considered the evidence and submissions of the parties I prefer the evidence of the applicant’s Mr Stass in respect of the heritage impact of the new fence. I accept that the removal of the erected piers will not result in the reinstatement of the original fence. The original fence has been removed however; the applicant has reused the original materials in the new design. While it is not the same fence we have photographic records and the original materials have been adaptively reused in a secure and functional fence. In the circumstances the applicant will be put to an expense to comply with the agreed modifications and I do not accept that the heritage significance of this heritage item will be better preserved if I were to require the applicant to demolish the piers and reconstruct the fence.
19 The Court orders are:
- 1. The appeal is upheld.
2. Development Consent to the modification application number ….is granted subject to the agreed modifications as detailed in the plan marked annexure A.
3. The applicant is to file and serve the modified plan annexure A within 7 days and upon receipt the orders of the court will be issued and the exhibits returned.
Susan Dixon
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