Dixon v Ku-ring-gai Council

[2021] NSWLEC 1687

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dixon v Ku-ring-gai Council [2021] NSWLEC 1687

Hearing dates:

Conciliation conference on 1 June 2021;
Hearing on 7 June 2021

Date of orders:

9 November 2021

Decision date:

09 November 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders: See [70] of Judgment

Catchwords:

DEVELOPMENT APPLICATION – local heritage item – subdivision into 2 lots – construction of dwelling on rear lot – cl 4.6 variation to minimum lot size standard – impact on heritage item and heritage conservation area – s34AA conciliation conference

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34AA, 39

Ku-ring-gai Local Environmental Plan 2015, cll 4.1, 4.3, 4.4, 4.6, 5.10, Schedule 5

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (6 April 2021)

Ku-ring-gai Development Control Plan 2016

Category:

Principal judgment

Parties:

Lisa Dixon (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2020/347681

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal filed with the Land and Environment Court (the Court) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Ku-ring-gai Council (Council) of Development Application DA0210/20 (the DA).

2. The DA seeks consent for demolition of a detached garage, outbuilding and shed at the rear of the site, subdivision to create two lots, construction and use of a new two storey dwelling house on the proposed rear lot, construction of a new double bay carport on the proposed front lot, and associated landscaping of both proposed lots.

The site and existing development

3. The DA relates to a 1922m² allotment of land identified as Lot 1 in DP 503695 at 7 Burns Road, Wahroonga (the Site). The Site is located on the southern side of Burns Road approximately 110 metres to the west of its intersection with Coonanbarra Road. It has a regular rectangular shape with a width of 30m and depth of 64m and a gentle fall from the rear (south) towards the street.

4. The Site is identified as a local heritage item in the Ku-ring-gai Local Environmental Plan 2015 (KLEP) and is occupied by:

1. a single storey detached dwelling house (the existing dwelling),

2. a detached single storey garage located towards the rear of the existing dwelling within the western side setback (the garage),

3. a small shed to the rear (south) of the garage and an outbuilding in the south-west corner of the Site, and

4. an in-ground swimming pool to the rear (south) of the existing dwelling.

Background

5. The DA was advertised and notified by Council between 19 June 2020 and 24 July 2020, resulting in the receipt of one submission by way of objection on behalf of residents of the neighbouring property to the east at 9 Burns Road. On 8 December 2020 the Class 1 Application was filed with the Court, and on 28 January 2021 the Council filed its Statement of Facts and Contentions (SOFC).

6. On 15 April 2021 the Applicant filed a Notice of Motion seeking leave to rely on amended plans and additional material, prepared in response to the SOFC. The amended plans and additional material, as defined in the affidavit of Leon Julian Batcher and attached to the Notice of Motion comprised the following documents:

1. Architectural Plans prepared by Fyffe Design (Issue M) dated 14 April 2021 (Amended Architectural Plans).

2. Landscape Concept Plan prepared by Susan Read Landscapes dated 13 April 2021 (Landscape Plan).

3. Stormwater Plans prepared by Ibrahim Stormwater Consultants (Issue 3) dated 13 April 2021 (Stormwater Plans).

4. Vehicle Swept Paths prepared by AusWide Consulting dated 19 March 2021.

5. Stormwater Design Calculations at 7 Burns Road, Wahroonga prepared by Ibrahim Stormwater Consultants, undated.

6. Clause 4.6 – Exception to Minimum Subdivision Lot Size Development Standard prepared by Andrew Minto dated 14 April 2021 (Clause 4.6 Request).

7. Leave was granted to rely on the amended plans and additional material (hereafter referred to as the Amended DA) and on 22 April 2021 the Amended DA was notified in accordance with Council’s Community Participation Plan. No submissions were received. On 12 May 2021 the Council filed its Amended Statement of Facts and Contentions (Amended SOFC) in response to the Amended DA.

8. The original SOFC predated the Council’s consideration of the documents filed with the Court on 15 April 2021. The Amended SOFC removed entirely the following earlier contentions: Number 7 (relating to insufficient site design), Number 8 (insufficient building design), Number 9 (tree removal impact and exemption), Number 10 (landscape amenity and design outcomes), although many of the matters referred to in Contention 10 were transferred to become matters that may be resolved by conditions, in Part D of the Amended SOFC.

9. In preparation for the Court hearing the following expert reports were prepared and filed with the Court:

1. A Joint Arboricultural Expert Report prepared by Mr Guy Paroissien (on behalf of the Applicant) and Mr Geoff Bird (on behalf of the Council), dated 29 March 2021 (Joint Arboricultural Report), that became Exhibit 3 in the proceedings.

2. An Ecology Joint Expert Report prepared by Mr Nicholas Skelton (on behalf of the Applicant) and Mr John Whyte (on behalf of the Council), dated 27 May 2021 (Joint Ecology Report), that became Exhibit 4 in the proceedings.

3. An Engineering Joint Report prepared by Mr Mark Ibrahim (on behalf of the Applicant) and Mr Brian O’Connell (on behalf of the Council), undated but filed with the Court on 25 May 2021 (Joint Engineering Report), that became Exhibit 5 in the proceedings.

4. A Joint Report of Planning Experts prepared by Mr Andrew Minto (on behalf of the Applicant) and Mr Scott McInnes (on behalf of the Council), dated 28 May 2021 (Joint Planning Report), that became Exhibit 6 in the proceedings.

5. A Heritage Joint Report prepared by Mr James Phillips (on behalf of the Applicant) and Ms Leona Goldstein (on behalf of the Council), dated 24 May 2021 (Joint Heritage Report), that became Exhibit 7 in the proceedings.

10. The Council also prepared a set of proposed draft Conditions of Consent which it filed in final form on 31 May 2021 (Draft Conditions) that became Exhibit 9 in the proceedings. The Draft Conditions related to the Amended DA.

11. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the s 34AA conciliation conference held on 1 and 7 June 2021. The conciliation conference commenced with a view of the site, and then proceeded via Microsoft Teams due to the Court’s Covid 19 Policy in place at that time. On the afternoon of 1 June 2021 I adjourned the s 34AA conciliation conference to 9:30am on 7 June 2021, with the Applicant undertaking, in the intervening period, to make further changes to the Amended Architectural Plans, Landscape Plan, proposed Plan of Subdivision and the Clause 4.6 Request based on discussions during the conciliation conference.

12. At the commencement of proceedings on 7 June 2021 the Council advised that while some of the matters in contention had been resolved others had not and it was therefore not in a position to reach an agreement. As the parties failed to reach an agreement as to the terms of a decision that would be acceptable to them I terminated the s 34AA conference and a hearing under the provisions of s 34AA(2)(b)(i) of the LEC Act commenced that morning of 7 June 2021 and concluded later that day. At the hearing, the parties agreed I could rely on my observations at the site view and the discussions held during the s 34 conciliation conference.

The Contentions satisfied

13. The hearing commenced with the tendering of evidence. Leave was granted for the Applicant to rely on additional or further amended plans and material as follows:

1. A Biodiversity Development Assessment Report prepared by GIS Environmental Consultants dated 28 May 2021 (BDAR), that became Exhibit B in the proceedings.

2. Further amended architectural plans prepared by Fyffe Design (Issue N) dated 3 June 2021 (Final Architectural Plans), that became Exhibit C.

3. A “Front Façade Option 2 East Elevation drawing No 8.1” prepared by Fyffe Design (Issue N) dated 3 June 2021 (East Elevation Option 2), that became Exhibit D.

4. A further amended Landscape Concept Plan prepared by Susan Read Landscapes (Issue E) dated 4 June 2021 (Final Landscape Plan), that became Exhibit E.

5. Further amended stormwater plans prepared by Ibrahim Stormwater Consultants (Issue 6) dated 2 June 2021 (Final Stormwater Plans) that became Exhibit F.

6. A revised Clause 4.6 – Exception to Minimum Subdivision Lot Size Development Standard prepared by Andrew Minto dated 4 June 2021 (Final Clause 4.6 Request) that became Exhibit G.

7. A Schedule of Conservation Works prepared by Weir Phillips Heritage and Planning, dated June 2021(Schedule of Conservation Works) that became Exhibit H.

8. A list of heritage conservation Policies prepared by Weir Phillips Heritage and Planning, dated 3 June 2021 (Conservation Policies) that became Exhibit J.

9. An updated Subdivision Plan drawing No 17 prepared by Fyffe Design (Issue N) dated 7 June 2021 (Final Subdivision Plan), that became Exhibit K.

14. Upon consideration of the various experts’ reports and the amended or additional material arising from the s 34AA conciliation conference some of the remaining contentions in the Amended SOFC were no longer pressed by the Council.

15. The Council commenced with a summary of the matters that had been resolved and those that remained in contention, by reference to the Amended SOFC dated 12 May 2021 (Ex 8), as follows:

1. Contention 1 (Adverse impacts on the setting of the heritage item) and Contention 2 (Adverse impacts on the heritage conservation area and heritage items in the vicinity of a heritage item) remained unresolved.

2. Contention 3 (Unacceptable Ecological and Biodiversity Impacts) had been resolved subject to conditions.

3. Contention 4 (Insufficient Ecological Assessment) had been resolved subject to conditions.

4. Contention 5 (Non-compliance with the minimum subdivision lot size) had been resolved with the tender of the Final Clause 4.6 request (Ex G) subject to the findings of the Court with respect to Contentions 1 and 2.

5. Contention 6 (Poorly resolved lot shape and design) had been resolved in part only, namely:

1. Particular a) (i) relating to the protection of remnant trees was resolved;

2. Particular a) (ii) relating to cultural heritage of the Site remained unresolved;

3. Particular a) (iii) relating to the subdivision plan was resolved with Exhibit K, subject to conditions with respect to stormwater easements; and

4. Particular c) was unresolved to the extent it deals with heritage issues.

6. Contention 11 (Stormwater Management) was resolved subject to conditions.

7. Contention 12 (Insufficient Information) had been resolved in part only, namely:

1. Particulars (a) and (b) relating to the provision of a Conservation Management Plan had been resolved, subject to conditions capturing Exhibits H and J; and

2. Particular (h) relating to the driveway longitudinal section had been resolved.

8. Part D (Contentions that may be resolved by Conditions) relating to the landscape design had been resolved with the provision of the Final Landscape Plan (Ex E) and subject to conditions.

16. Accordingly, there remained essentially one key issue in contention between the parties, namely the impact of the proposal on the heritage item on the Site, the heritage conservation area and on other heritage items in the vicinity. As the parties pointed out, the Court would also need to be satisfied that the Final Clause 4.6 Request was also acceptable and could be upheld.

17. There was no dispute between the parties regarding the development’s ability to satisfy other relevant jurisdictional requirements. The Amended SOFC helpfully sets out at par 15 the relevant statutory controls, and at par 14 includes extracts of the KLEP Zoning Map, Heritage Map and Minimum lot size Map. The Site is zoned R2 Low Density Residential under the KLEP and the proposed development is permissible with consent.

18. The Table at par 16 of the SOFC sets out how the proposed development complies with the relevant development standards in the KLEP for:

1. Minimum lot size (cl 4.1) – it does not comply, necessitating the submission of a clause 4.6 request to vary the standard.

2. Building height (cl 4.3) – it complies.

3. Floor space ratio (cl 4.4) – it complies.

The heritage impacts

19. The Site is identified as an item of local significance in Schedule 5 of the KLEP (item number I857 “Meryon”, a dwelling house). It is shown on the KLEP Heritage Map as being located within the Wahroonga Heritage Conservation Area (WHCA), that is also identified as being of local significance (in Part 2 of Schedule 5). The provisions of cl 5.10 of the KLEP therefore apply. Subclause (4) of cl 5.10 states that “The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.” The following paragraphs 20 to 52 consider the effects of the proposed development on the heritage significance of the item and heritage conservation area.

20. The Court has been assisted in its consideration of the heritage impacts by the Statement of Heritage Impact – Subdivision prepared by GBA Heritage dated April 2020 and tendered as part of Exhibit A, the Joint Heritage Report (Ex 7) and the oral evidence of the authors of that report, Mr Weir and Ms Goldstein, the Schedule of Conservation Works (Ex H) and the heritage conservation Policies (Ex J).

21. The Council claims in its Amended SOFC (Ex 8):

1. at Contention 1, that the “proposed development will have an adverse impact on the setting of the heritage item and fails to satisfy the heritage conservation provisions of the KLEP and (Ku-ring-gai Development Control Plan 2014) KDCP”, and

2. at Contention 2, that the “proposed new dwelling will have an adverse impact upon the WHCA and fails to satisfy the heritage conservation provisions of the KLEP and KDCP”.

22. The Particulars for each of the two heritage contentions are set out in full in the Amended SOFC and in the Joint Heritage Report. In opening submissions Mr Winram for the Council took the Court to cl 5.10 of the KLEP (Tab 8 of Ex 1) and the following heritage conservation provisions at Part 19 of the KDCP (Tab 17 of Ex 1):

1. 19A.1 Subdivision … for new development within an HCA (Folio 176, Ex 1), noting in particular:

1. Objective 3, which is “To ensure new subdivisions … do not have an adverse impact upon the curtilage of Heritage Items, the streetscape setting of significant buildings and the identified character of the HCA as a whole”; and

2. The references in Controls 1 and 2 to the impact on curtilage, and to Control 3 requiring a curtilage assessment.

2. 19A.2 Subdivision … of a Heritage Item (Folio 177, Ex 1), noting in particular:

1. Objective 1, which is “To ensure new subdivisions … do not have an adverse impact upon the curtilage and setting of Heritage Items”, and

2. Control 3(iii), which says “The distance or setback of new development from the Heritage Item is to consider the curtilage and setting of the item and informed by the Conservation Management Plan (CMP)”; and

3. The emphasis on the “garden setting” in the Controls 3(iv) and (v).

23. In summary Mr Winram said the Council’s position is that the garden is an essential part of the curtilage and setting of the Heritage Item and can’t be excluded or subdivided.

Impacts on the heritage significance of the heritage item, including its curtilage and garden setting

24. To assess the impact of the proposed development upon the heritage significance of a heritage item or HCA it is first necessary to establish what that significance is. Firstly I shall deal with the significance of the heritage item and the impacts of the proposed development (both the subdivision and the proposed new dwelling) on that significance.

25. Particulars (a) and (b) to Contention 1 state:

“(a) The site “Meryon” is an item of local heritage significance listed under Schedule 5 of the KLEP. The significance of the item includes its streetscape presentation and aesthetic Inter-War detailing, its association with Architect Hardy Wilson and painter Sir Lionel Lindsay, its landscape qualities as well as its historical links to the early establishment of Wahroonga.

(b) The building is a substantially intact example of Georgian Revival style designed in 1911, demonstrates aesthetic, architectural, and historic values and will be adversely affected by the proposed subdivision. This is inconsistent with Part 19A.2.1 of the KDCP which requires that any subdivision to not adversely affect the cultural significance of the heritage item.”

26. The established significance of the heritage item, as agreed between the heritage experts, is set out on pp 3 and 4 of the Joint Heritage Report. This is based on the published sources of the NSW Heritage Inventory and the Council’s State Heritage Inventory (SHI) database research, a copy of which is included at Tab 26 of Exhibit 2. Ms Goldstein goes further in her own Statement of Significance prepared in preparation for the appeal in April 2021, as is set out on pp 6 – 7 of the Joint Heritage Report.

27. Ms Goldstein’s Statement of Significance identifies the significance of the Site as follows:

1. Its historical significance as a representative example of an early Georgian Revival style dwelling built as part of the gradual subdivision and development of Wahroonga;

2. Its aesthetic significance as an excellent rare example of an early Georgian Revival Style dwelling exhibiting key characteristics of the period that are still evident despite modifications and additions.

3. Its historic associations with the architect, Hardy Wilson, and the original occupant and owner the painter Lionel Lindsay, who “had a large workshop in the rear garden where his famous works were created.”

4. Its social significance due to Lionel Lindsay’s involvement in the early 1920s Painter’s and Etchers Society and the National Art Gallery of New South Wales.

28. Mr Phillips (at p 12 of the Joint Heritage Report) notes the State Heritage Inventory does not provide a clear Statement of Significance for the Site and states that he generally concurs with Ms Goldstein’s Statement of Significance.

29. With respect to the impact of the proposal on the significance of the heritage item Ms Goldstein’s opinion (at p 14 of the Joint Heritage Report) is that:

1. the proposed subdivision would see “the associative significance” of where Sir Norman Lindsay’s work was produced (in the workshop, since demolished) “removed from the original lot onto an entirely different lot” resulting in a “loss and erosion to the significance of the Heritage Item”, and

2. the construction of the proposed dwelling behind the existing house would “detract from the established cultural significance”.

30. Mr Phillips on the other hand (at p 14 of the Joint Expert Report), while agreeing the building is a substantially intact example of the Georgian Revival style designed in 1911 and demonstrates aesthetic, architectural and historic values, is of the opinion that the proposed subdivision will not adversely affect the cultural significance of the Heritage Item because:

“The subdivision is to the rear of the lot.

There is ample separation between the existing house and the proposed house.

The setting of the house and the historic photographs of the house and its occupants is to the front of the house and in particular the unaffected north-east corner of the house.

Any structures associated with the owners of the house have been removed from the back yard sometime in the past.”

31. Particular (c) of Contention 1 raises the question of the curtilage and setting of the heritage item. It states:

“(c)The proposed subdivision and new building will have an adverse impact on the heritage values of the existing house and garden and is inconsistent with Part 19A2.2 of the KDCP which require the curtilage and setting of the heritage item not be compromised.”

32. Curtilage, with respect to a heritage item, is not defined in the KDCP but is defined in the KLEP dictionary. Under that definition the curtilage is the area of land surrounding a heritage item that “contributes to its heritage significance”. The KLEP definition is as follows:

curtilage, in relation to a heritage item or conservation area, means the area of land … surrounding a heritage item, a heritage conservation area, or building or place within a heritage conservation area, that contributes to its heritage significance.

33. Ms Goldstein (at p 15 of the Joint Heritage Report) states that the curtilage for 7 Burns Road “includes associated buildings, trees and the garden which contribute to the significance of the property.” She notes Article 8 of the Burra Charter Conservation principles that “requires the retention of an appropriate visual setting and other relationships that contribute to the social significance of the place.”

34. In oral evidence Ms Goldstein expressed the view that the back yard is of great importance, with the trees, grasses and “everything in the area”, except the swimming pool, forming part of the heritage significance. She agreed, however, that in addition to the swimming pool, the two sheds and garage were not of significance.

35. In Ms Goldstein’s opinion (at p 16 of the Joint Heritage Report)

1. the “retention of the house and garden is paramount in understanding and interpreting the heritage item and its curtilage”, and

2. “the proposed new building will change the relationship with the house and will remove part of its visual setting due to its close proximity to the existing dwelling and will have a detrimental impact on the cultural significance of the heritage item.”

36. Mr Phillips’ opinion (at p 16 of the Joint Heritage Report), on the other hand, is that “The proposed subdivision and new building will not have an adverse impact on the heritage values of the existing house as adequate curtilage and setting of the heritage item is retained in an uncompromised manner.”

37. Mr Phillips supports Ms Goldstein’s opinion that retention of the house is important, as is part of the garden, but not the entire garden. His evidence is that “The garden to the western side has been totally changed and does not feature in paintings or historical photographs. There is no remaining evidence of any studio or the arbor in the rear garden, the area where the new dwelling is proposed.”

38. Having considered the heritage evidence before the Court I find that the heritage significance of the item located at 7 Burns Road arises from its historical, aesthetic and social significance (by virtue of its associations with the architect Hardy Wilson and the painter Lionel Lindsay, the original owner), as described in Ms Goldstein’s Statement of Significance (quoted at p 6 of the Joint Heritage Report). I accept that the large site and garden setting comprise the item’s curtilage and these contribute to its significance.

39. I also accept Mr Phillips’ evidence that the rear garden is of a lesser importance (than the front and eastern side gardens) due to its having been compromised over the years with the removal of the former workshop, the addition of the sheds and garage, and the construction of the residential flat buildings at the rear that intrude visually upon the setting.

40. I find that the impact of the proposed development, both subdivision and the construction of the new dwelling, on the significance of the heritage item is acceptable because:

1. The existing house remains unchanged (with no works proposed) and the identified historical, aesthetic and social significance are not unduly impacted.

2. The width of the existing allotment is retained, with vehicular access to the new rear lot via the existing, shared driveway (secured by an easement for right of way). This assists in interpreting the original subdivision pattern and minimising impacts on the garden setting as viewed from the street.

3. The streetscape and visual setting, when viewed from the street, will remain largely unchanged.

4. The separation of the existing and proposed dwellings, the siting of the proposed dwelling, the retention of trees on the rear lot, and the new landscaping works on both lots all contribute to the mitigation of impacts on the existing dwelling.

5. An Interpretation Plan, implementation of the Heritage Policies (Ex J) and the Schedule of Conservation Works (Ex H) will also assist in protecting the heritage significance of the existing dwelling in its setting. These can be included as conditions of consent.

Impact on the Wahroonga Heritage Conservation Area

41. The Council also contended (at Contention 2) that the proposed development will have an adverse impact on the WHCA, because (in summary):

1. It will detract from the existing garden setting - Particular (a).

2. The new dwelling is an unsympathetic addition to the WHCA and is contrary to the KDCP requirements to have sufficient regard to form and architectural character, architectural language, materials, siting and setting – Particular (b).

3. The landscape design has not considered the loss of existing landscape fabric or features that contribute to the heritage landscape setting – Particular (c).

4. The proposed driveway will create a large amount of hard surface area, inconsistent with the KDCP requirement to retain the established landscape character of the heritage item – Particular (d).

5. The proposed dwelling is a visually dominant form, excessive in scale and does not integrate with the established character of the WHCA as required by the KDCP – Particular (e).

6. The garden will be greatly reduced, contrary to the KDCP requirement that new gardens enhance the historic and aesthetic character of the streetscape and WHCA – Particular (f).

7. The design of the new dwelling is not compatible with the existing dwelling and its mass, proportions and detailing are inconsistent with contributory buildings in the WHCA – Particular (g).

42. The WHCA is one the larger Heritage Conservation Areas in Ku-ring-gai, as identified on the KLEP Heritage Maps. It stretches from just north of Kintore Street to the north, the Wahroonga Public School on Burns Road to the west, Pacific Highway and Chiltern Parade to the south, and as far west as 5 Burns Road, the property adjoining the Site to the west. The land adjoining the Site to the south, on which the taller residential flat buildings are constructed, is outside the WHCA. The Site is therefore at the western extremity of the WHCA.

43. The various Particulars in Contention 2 are addressed in detail by the heritage experts in their Joint Heritage Report from pp 19 to 24 inclusive and I won’t attempt to repeat them in this judgment. The only point of agreement between them is in their identification of the heritage significance of the Wahroonga Conservation Area (the HCA) taken from the Ku-ring-gai heritage conservation areas inventory sheets, as follows (and quoted on p 19 of the Joint Heritage Report).

“Wahroonga Heritage Conservation Area is of heritage significance for its distinctive residential streetscapes which evidence the transformation of early subdivision of the 1890s into the later rectilinear grid lot streets and lot pattern of later subdivisions including the Wahroonga Heights Estate. The area contains a significant collection of grand residences from the Federation and Inter-war periods, built following the opening of the North Shore railway line in 1890, many of these are the residences of prominent families of this period, and often designed by prominent architects, for example the 1894 Ewan House (formerly Innisfail) designed by architect Herbert Wardell for John Thomas Toohey, and eleven houses designed by the architect Howard Joseland. The western end of Burns Road and western side of Coonanbarra Road are representative streetscapes of intact more modest Federation period houses.

The through-block pathways and formal avenues of street trees within the area (in Burns Road, Water Street and Coonanbarra Road) along with the formal landscaping of Wahroonga Park, and its distinctive John Sulman-designed shops in Coonanbarra Road facing the Park, are a tribute to the work of the Wahroonga Process Association in the early 20^th century (which included Sulman as a member), and have resulted in a high-quality and distinctive residential landscape.”

44. In essence the response of the heritage experts to the matters identified in Contention 2 of the Amended SOFC can be summarised as set out in the following paragraphs 45 and 46.

45. Ms Goldstein’s evidence can be summarised as:   

1. The historic subdivision pattern provides the framework upon which the area developed and this pattern makes an important contribution to the character/ significance of the WHCA. The “loss of a single allotment and the creation of two new allotments” would have an adverse impact on the historic significance of the WHCA.

2. The established landscape character of the WHCA is of houses set in large gardens. The gardens and large trees are an important part of the WHCA’s aesthetic value. The loss of the garden and in particular the loss of three large turpentine trees would be detrimental.

3. The proposed new dwelling is overt in scale, height (two storeys), bulk and architectural character, is not compatible with and will dominate the existing single storey dwelling. It is not sympathetic in character, materials, colours and detail with the existing contributory buildings, and does not compliment the predominant character of the WHCA as a whole. The rendered façade, large windows and quoined corner elements are incongruous with the established character.

4. It is important to retain the existing trees that are of historic significance and contribute to the visual amenity of the area.

5. The battle-axe driveway and rear lot are uncharacteristic of the area, the dwelling, driveway and carports occupy a large area and the proposed OSD pits are an unsightly element in the front setting.

46. Mr Phillips evidence on the matters raised in the Particulars to Contention 2, as set out in pp 19 to 24 of the Joint Heritage Report can be summarised as:

1. The new dwelling is located at the rear of the property, will be screened by landscaping, will be barely visible from the public domain and its presence in the WHCA is acceptable. It will be less visible than the residential flat buildings at the rear of the Site (off Woniora Avenue).

2. The garden setting and setback of the existing house are maintained so as not to impact the historic and aesthetic character of the streetscape or WHCA.

3. The landscape fabric that contributes to the heritage significance of the site (that is the landscaping to the front and eastern side of the existing dwelling) is largely unaffected. The new house has been sited to minimise tree removal. The new and existing buildings are separated such that they can be screened from one another.

4. The existing driveway on the western side is maintained, and planting and landscaping there is also retained. The driveway and its extension have been designed to minimise the amount of hard surface whilst allowing for vehicles to enter and leave the site in a forward direction.

5. The two storey height of the new dwelling is not uncommon in the WHCA and has been located directly behind the existing dwelling and is “dwarfed” by the residential flat buildings behind.

6. The new work is acceptable as it does not distort or obscure the cultural significance of the existing dwelling, nor detract from its interpretation or appreciation. The new dwelling is clearly contemporary and contemporary materials are permitted, and in this case distinguish the proposed dwelling from the existing.

47. In oral evidence Mr Phillips was pressed on the subject of the significance of the rear yard, and its contribution to the setting of the existing house. His evidence was that the rear yard formed part of the setting although views of it from the front were obscured by trees and the rear yard had changed a lot over time compared to the front yard and front of the house. He agreed the rear of the existing house will be separated from its setting, although the trees to the side and rear of the new house will continue to contribute to the setting.

48. In Ms Goldstein’s opinion a secondary dwelling or an addition in the rear may be acceptable in terms of impacts on the WHCA, but “subdivision changes everything”. Ms Goldstein acknowledged the proposal protected the streetscape, and that the existing house could be seen “in all its glory” from the street.

49. With respect to the subdivision plan, Ms Goldstein acknowledged that “you wouldn’t subdivide the land ‘down the middle’ due to the impact on the house”, that the proposal was not for a battle-axe lot, the existing driveway was to be used by both houses, the width of the lot maintained and that it was easy to interpret the former extent of the lot.

50. On the question of conservation of the existing dwelling Ms Goldstein acknowledged that the Schedule of Conservation Works (Ex H) and the Conservation Policies (Ex J) “will help”. Both heritage experts expressed the view that if consent were to be granted an Interpretation Plan, including the garden, would be appropriate.

51. Having considered the evidence before me, I find the proposed development, including the subdivision and construction of the proposed new dwelling and the associated landscaping are acceptable in terms of the impact it will have on the heritage significance of the sizeable WHCA as a whole. I accept and prefer the evidence of Mr Phillips, noting the mitigating effects of the subdivision plan (proposing a rear lot without battle-axe handle), the shared driveway, the landscaping and the minimal visual impact upon the streetscape and existing dwelling when viewed from elsewhere in the conservation area.

52. I also agree with the heritage experts that the proposed Schedule of Conservation Works and Conservation Policies, along with an Interpretation Plan will contribute positively to the on-going conservation of the heritage item and interpretation of it and the WHCA. These can be incorporated into an approval as conditions of consent.

The Clause 4.6 Request

53. Having considered the impact of the proposed development on the heritage significance of the heritage item and the WHCA, as required by cl 5.10 of the KLEP, and found that impact to be acceptable, I now turn to the Amended Clause 4.6 Request.

54. The proposed subdivision will create two allotments, one of which is less than the minimum lot size development standard in cl 4.1 of the KLEP. Clause 4.6 of the KLEP, however, permits variations to a development standard, subject to consideration by the consent authority of a written request from the applicant that seeks to justify contravening the standard. In this case such a request was provided, which became Exhibit G. I have been assisted in my consideration of the Amended Clause 4.6 Request by the evidence of the town planners in the Joint Planning Report, including in particular Attachment C to that report which provides detailed commentary on the Clause 4.6 Request, albeit the earlier version dated 14 April 2021.

55. The objectives of the cl 4.1 Minimum subdivision lot size development standard are found at cl 4.1(1), quoted below:

(1) The objectives of this clause are as follows –

(a) to ensure that the lot sizes and dimensions are able to accommodate development consistent with the relevant development controls and minimise risk to life and property from environmental hazards, including bush fires,

(b) to ensure that the lot sizes and dimensions allow development to be sited to protect natural or cultural features including heritage items, remnant vegetation, habitat and waterways, and provide for generous landscaping to support amenity of adjoining properties and the desired character of the area,

(c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area.

56. The Amended Clause 4.6 Request (Ex G) sets out the relevant details of the proposed subdivision and the extent of the non-compliance with the KLEP development standard. In summary:

1. The minimum subdivision lot size for the Site, pursuant to cl 4.1(3) and the KLEP Lot Size Map, is 930m².

2. The proposed development includes subdivision of the 1,923.7m² Site into:

1. proposed Lot 7A (on which the heritage listed existing dwelling is located), which has an area of 1,168.92m² (Lot 7A) and is therefore compliant; and

2. proposed Lot 7B (on which the proposed new dwelling is located), which has an area of 754.78m² (Lot 7B) and is therefore non-compliant.

57. The proposed Plan of Subdivision (Ex K) is noted as “Issue N” and dated 7 June 2021. It includes a Right of Carriageway and two easements, one for drainage and one for services, across Lot 7A in favour of Lot 7B. The Issue N Plan of Subdivision differs slightly from the earlier “Issue M” version (dated 14 April 2021), as attached to the Amended Clause 4.6 Request. The Issue N Plan of Subdivision, as compared to the Issue M version, amends slightly the location and area of the Right of Carriageway and incorporates the easements, consistent with the agreed position of the engineers. Those amendments do not affect the substance of the Amended Clause 4.6 Request.

58. In accordance with the requirements of cl 4.6(3)(a) of the KLEP, I am satisfied that the Amended Clause 4.6 Request has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Applying the first test established by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe), the objectives of the standard are achieved notwithstanding the non-compliance with the standard. I accept the reasons contained in Section 3 (points a. to p. on pp 4 to 6) of the Amended Clause 4.6 Request as demonstrating achievement of the objectives, and specifically that

1. the proposed lot sizes and dimensions are able to accommodate both dwellings consistent with the relevant development controls, and

2. the plan of subdivision allows the new dwelling to be sited with sufficient distance separation from the existing dwelling to protect this heritage item, and to protect the remnant vegetation that is to be retained, and

3. the development allows for sufficiently generous landscaping to support the amenity of adjoining properties and the desired character of the area.

59. I also note that the town planners agree or largely agree with the majority of the reasons for why the proposal satisfies the objectives of the development standard (refer to Attachment C of the Joint Planning Report).

60. As the first test in Wehbe is satisfied there is no need to demonstrate that compliance is unreasonable or unnecessary in more than one of the ways outlined in Wehbe: refer to (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) Preston CJ at [22]).

61. In accordance with the requirements of cl 4.6(3)(b), I am satisfied that the Amended Clause 4.6 Request has demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. I have reached this conclusion for the reasons set out in Section 4 (pp  7 to 8) of the Amended Clause 4.6 Request, and taking into account the amendments illustrated in the Final Amended Plans (Ex C) and Final Landscape Plan (Ex E).

59. For the reasons above, I am therefore satisfied that the Applicant’s Amended Clause 4.6 Request has adequately addressed the two matters referred to in cl  4.6(3) as required under cl 4.6(4)(a)(i).

60. In accordance with the requirements of cl 4.6(4)(a)(ii), I am also satisfied that the proposed development will be in the public interest because:

1. it is consistent with the objectives of the particular development standard for the reasons set out in [58] above, and

2. it is consistent with the objectives for development within the “Zone R2 Low Density Residential” zone in which the development is proposed to be carried out.

64. The objectives of the R2 Zone are found at the beginning of the KLEP Land Use Table for that zone, a copy of which was provided at Tab 1 of Ex 1, and are quoted below:

Objectives of zone

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

65. The proposal is consistent with the objectives of the R2 Zone because:

1. it provides for the housing needs of the community by creating an additional Torrens Title allotment within a low density residential environment. With an average lot size of 961.85m² for the proposed two allotments the existing permissible low density is retained, and

2. the second objective is not relevant to this application, and

3. the development provides for a new dwelling house that is compatible with the existing environmental and built character of Ku-ring-gai.

66. More specifically, with respect to the third objective, the proposed development is compatible with the existing environmental and built character Ku-ring-gai for the reasons set out in Section 3, 2. a. to i. on p 9 of the Amended Clause 4.6 Request.

67. I therefore find that the Amended Clause 4.6 Request is well founded and should be upheld.

68. Having considered the evidence in the various exhibits, and in particular the written evidence of the various experts in their respective expert reports (Exhibits 3, 4, 5, 6 and 7), the oral evidence of the heritage experts, the written submission of behalf the adjoining owner (Tab 23, Ex 2), the oral submissions of the parties, and the other matters for consideration under s 4.15 of the EPA Act, I am satisfied that, for the reasons set out in this judgment, the appeal should be upheld and consent granted to the DA.

69. In order to grant development consent the DA must first be amended by uploading the amended application to the NSW planning portal. Once the DA has been amended I foreshadow granting consent, subject to the Draft Conditions in Exhibit 9.

Directions

70. Accordingly, the Court orders that:

1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Ku-ring-gai Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application DA0210/20 filed with the Court on 8 December 2020 by the addition of the following documents:

Plan no.	Drawn by	Dated
Plan of Subdivision
17 (Issue N) Subdivision Plan	Fyffe Design	07/06/2021
Architectural Plans (Lot 7B)
A04 (Issue N) Site plan A06 (Issue N) Ground floor plan A07 (Issue N) First floor plan A08 (Issue N) North and south elevations A09 (Issue N) East and west elevation A10 (Issue N) Building sections A11 (Issue N) Roof plan, 8.1 Front façade option 2 (Issue N)	Fyffe Design	02/06/2021
Architectural Plans (Lot 7A)
A12 (Issue N) Carport details	Fyffe Design	02/06/2021
Landscape Plans
L01 (Issue E) Landscape concept plan, details notes and images	Susan Reid Landscapes	04/06/2021
Stormwater Management Plans
Sheet 1 of 2 (Issue 6) Stormwater layout Sh.1 Sheet 2 of 2 (Issue 6) Stormwater details Sh.1	Ibrahim Stormwater Consultants	02/06/2021
Sheet 3 of 3 (Issue 6) Driveway long section	Ibrahim Stormwater Consultants	02/06/2021

Document(s)	Dated
Basix certificate No. 1099554s_03	08/04/2021
NatHERS Certificate No. 0004828133-01	08/04/2021
Colours and finishes schedule prepared by Fyffe Design DWG 14 (Issue N)	02/06/2021
Flora and Fauna Assessment Report prepared by GIS Environmental	17/11/2020
Consultants Ref: BAFF001
Biodiversity Development Assessment Report (BDAR), prepared by GIS Environmental Consultants Ref: DWD35BDAR026	28/05/2021
BAM (Annexure A to the BDAR)	03/06/2021
Conservation Policies prepared by Weir Phillips Heritage and Planning	03/06/2021
Schedule of Conservation Works	06/2021

2. The Respondent, Ku-ring-gai Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the Applicant after it has been lodged.

3. The Applicant is to file a copy of the amended development application within 7 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal.

4. In the event the Respondent is unable to lodge the amended application on the NSW planning portal as directed in (2) above, the Respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request for the matter to be relisted for further directions.

………………………….

J Bindon

Acting Commissioner of the Court

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Decision last updated: 09 November 2021