Figgis & Jefferson v Hunters Hill Council

[2005] NSWLEC 169

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Figgis & Jefferson v Hunters Hill Council [2005]  NSWLEC 169

PARTIES:
APPLICANT
Figgis & Jefferson

RESPONDENT
Hunters Hill Council

CASE NUMBER:      11542 of        2004

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Hunters Hill Local Environmental Plan No. 1

CORAM:        Brown C

DATES OF HEARING:          16/03/2005

EX TEMPORE DATE:          16/03/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr S. Kondilios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Ms K. Gerathy, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 March 2005

11542 of 2004     Figgis & Jefferson v Hunters Hill Council

JUDGMENT

1. This is an appeal against the deemed refusal of DA2004/1144 by Hunters Hill Council (the council) for the partial demolition of an existing dwelling and the construction of further additions to the dwelling at No. 14 Martin Street, Hunters Hill (the site).

1. The proposal seeks consent to erect a two storey addition to the northern end of an existing single storey cottage.  The proposed extension would consist of a sitting room, breakfast room, kitchen and bathroom on the ground floor and a study bedroom walk-in, an en-suite on the first floor.  The existing cottage is to be reconfigured.

1. The site is a corner allotment on the northern side of Martin Street at the south-western end of Abigail Street, Hunters Hill.  It is irregular in shape, having a frontage width of 19.315 m to Martin Street and a frontage width of 30.48 m to Abigail Street.  The site has a total area of 298.1 sq m.  It has a cross floor from the northern end of the site down towards the southern end of between 800 mm and 1 m. 

2. The existing dwelling is known as “Wainload” and is located within an area where the development generally consists of dwelling houses of single storey form with some part one and two storey and two storey dwellings. 

1. The site is zoned residential 2(a3) under Hunters Hill Local Environmental Plan No. 1 (the LEP).  The proposed use is permissible with consent.  The LEP provides aims and objectives at cl 2, requirements for items of environmental heritage at cl 19, requirements for conservation areas at cl 19A and consultation with the Conservation Advisory Panel at cl 19B.

1. The dwelling is an identified item of environmental heritage and is located within a conservation area.  Additionally, the site adjoins or is located near other identified items of environmental heritage at No.’s 5, 10, 11, 12 and No. 15 Martin Street.

1. Hunters Hill Development Control Plan 15 - Residential Development (the DCP) also applies.  Planning Policy for All Development are at cl 13 and Planning Policy for Heritage and Conservation Areas are at cl 4. 

1. The council filed a Statement of Issues containing six separate issues.  These can be conveniently grouped into the following main areas:

   1.whether the proposed development will have an unacceptable impact on the existing dwelling, nearby heritage items and the conservation area,

   2.whether the proposed development adversely impacts on the amenity of adjoining properties and

   3.whether the proposed development will create an unacceptable precedent.

1. Evidence for the council, was provided by Mr Greg Patch, an architect and heritage consultant and Mr Joe Cagliata, a town planner with the council.

1. Evidence for the applicant, was provided by Mr Graham Brooks, an architect and heritage consultant and Mr David Crane, a town planner.

1. In considering the potential heritage impacts, the LEP provides a range of requirements.  The aims, objectives seek to “conserve the environmental significance….of the municipality” (cl 2(a)) and “ensure that new development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of the items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart….” (cl 2(b3)).

1. In terms of the items in environmental heritage, the Court shall not grant consent unless an assessment has been made of the impact on the significance of the item (cl 19(2)) it’s setting (cl 19(3)) and specific design features (cl 19(4)).

1. In terms of conservation areas, the Court shall not grant consent unless an assessment has been made of the impact on the significance of the conservation area (cl 19A(2)) and specific design features (cl 19A(3)).

1. The DCP provides further controls to ensure that additions “perform well as good neighbours, respect the distinctive character and heritage of the municipality and consider the amenity of residential properties”.  (cl 1.2).

1. The DCP also provides urban form characteristics in relation to scale at (cl 2.2.2) and vegetation (cl 2.3.3). in addition to general objectives (cl 3.1) and design parameters (cl 3.2) and preferred design parameters (cl 3.3). 

1. Specific heritage and conservation requirements provide objectives (cl 4.2) and heritage item principles (cl 4.5).

1. While the LEP and DCP provide a range of individual requirements, they can be collectively seen as a means to require any new developments or additions to harmonise and maintain a compatible scale, bulk and character with surrounding residential development. 

1. Mr Patch maintains that the proposed additions do not satisfy this test.  He states that the proposal will have an adverse impact on the setting and significance of the item, as it will place an element of excessive bulk when considered against this item.  It will also detract from the presentation when viewed from some sectors of Martin Street and Abigail Street.  While the streetscape to Abigail Street is quite diverse, the placement of the proposed extension at a setback of 1.2 m and with a two storey elevation at the setback, the proposal will result in an anomalous element in the streetscape. 

2. Mr Brooks on the other hand, states that the proposed extensions have been the subject of considerable discussion with the council.  In his opinion, the design deliberately takes close account of its context and respects the scale and character of the existing item and conservation area.  He sees no heritage issues with regard to the compliance with the character and scale on the streetscape.  The scale of both Martin Street and in particular Abigail Street is quite generous in the normal Hunters Hill context.  There is also a good level of vegetation from trees in both street footpaths and within the site. 

1. In balancing the competing evidence of Mr Patch and Mr Brooks and with the benefit of a site view, I prefer the evidence of Mr Patch.  In my view there are a number of elements of the proposal that militate against its approval.  The 1.2 m setback, combined with the two storey elevation at the setback is inconsistent with the scale, bulk and character of its neighbours.

1. While I agree with Mr Brooks that the Inter - war character of Abigail Street is different to the Victorian - era Martin Street character, the bulk and scale of the proposal does not harmonise particularly well with either character. Even though recent amendments to the roof form have improved its street presentation, I agree with the council experts that it does not overcome the fundamental problems with the height and proximity to the Abigail Street frontage.

1. I also agree with Mr Patch that the extension tends to overpower the modest single storey form of the existing cottage.  While its affect is less noticeable from Martin Street because it is located behind the existing cottage, it is more prominent in the Abigail Street frontage, even though partially hidden by a 1.8 m high paling fence.

1. I also agree with the council’s position that any reliance on landscaping should not be entertained, particularly when there are serious fundamental issues with the suitability of the design. 

1. In coming to this conclusion, I accept that the applicant has relied on a number of two storey dwellings and two storey extensions nearby, including the heritage items at No.’s 10 and 12 Martin Street.  As explained to the Court, these extensions were approved prior to the coming into effect of the DCP.  It was also explained to the Court that the DCP was created to stop the form of additions on the adjoining properties.  It would be unacceptable for the Court to ignore the requirements of the DCP, notwithstanding the two storey form of development near the site.

1. The council also raised a concern over the loss of visual separation between the dwelling on the site and No. 12 Martin Street.  This occurs through the irregular shape of the site, the loss of some vegetation in this area and the proposed extension being located on the boundary.  While it is a relevant consideration, I am not convinced that in isolation it would warrant the refusal of the application.

1. Overall, the proposal is simply too large for its location.  The site is relatively small at 298 sq m and particularly narrow at around 7.5 m where the extension is proposed.  Clearly, the constraints imposed by the location of the existing cottage and the irregular shape of the site do not allow the site to be developed to the level anticipated by the council’s planning controls.

1. For these reasons, I find that the proposal is inconsistent with the aims, objectives in cl. 2(a) and 2(b3) of the LEP. 

2. In accordance with cl. 19(2) and 19(3), I find that the proposed development will have an unacceptable impact on the item of environmental heritage on the site and it’s setting.

3. In accordance with cl 19A(2), I find that the proposed development will have an unacceptable impact on the heritage significance of the conservation area.

1. The impact on No. 12 Martin Street was limited to the potential impact of the proposed extension on the common boundary.  While the owner did not respond to the advertising of the development application by the council, a submission objecting to the proposal was provided to the Court.  The submission raises general heritage concerns in addition to specific concerns of overshadowing and overlooking.  Even though the evidence does not support the concerns expressed in relation to overshadowing and overlooking, the erection of a two storey wall on the boundary and within 1 m of the adjoining dwelling is unacceptable and confirms the previous findings that the proposed development is excessive for its location on this site.

1. In my view, the issue of precedent is not a matter that should be given any meaningful weight.  The particular characteristics of the site are not likely to be replicated and I have little doubt that the circumstances could easily be distinguished from other similar applications if the application was approved.

1. For the foregoing reasons, the Orders of the Court are:

1.The appeal is dismissed.

2.DA2004/1144 for the partial demolition of an existing dwelling and the construction of further additions to the dwelling at 14 Martin Street, Hunters Hill is refused.

3.The exhibits are returned with the exception of exhibit D.

________________________
G T Brown
Commissioner of the Court

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