Filidelfia Projects v Ku-ring-gai Council

[2008] NSWLEC 1274

Land and Environment Court

of New South Wales

CITATION:	Filidelfia Projects v Ku-ring-gai Council [2008] NSWLEC 1274
PARTIES:	APPLICANT Filidelfia Projects Pty Limited RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10225 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of a residential flat building - impact on heritage item
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance
CASES CITED:	Coles and Merc v Ku-ring-gai Council (2007) NSWLEC 249
DATES OF HEARING:	26/06/08
DATE OF JUDGMENT:	27 June 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr D Baird, solicitor SOLICITORS Maddocks RESPONDENT Mr M Staunton, barrister SOLICITORS HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 June 2008

10225 of 2008 Filidelfia Projects Pty Limited v Ku-ring-gai Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council (the council) of DA 1136/07 for the erection of a residential flat building at 3-13 Bundarra Avenue and 10 Woonona Avenue, Wahroonga (the site).

2 The Statement of Facts and Contentions filed by the council identified three areas of dispute. The contentions relating to the breach of the landscape area requirements and the internal amenity of some of the units was not pressed by the council following the acceptance of further conditions by the applicant. The remaining contention was the impact on the heritage item at 14 Woonona Avenue known as The Briars.

Background

3 The site has been the subject of a similar recent development application. Development Application 478/06 sought consent for 76 units within three five-storey buildings, a basement car parking and landscaping works. The application was refused by the council and subsequently appealed to the Land and Environment Court (Coles and Merc v Ku-ring-gai Council (2007) NSWLEC 249). The appeal was upheld, however the height of Building B (located closest to The Briars) was reduced from five storeys to three storeys in height. This resulted in a reduction in the number of units from 76 to 66. This consent has been activated and construction has commenced.

The proposal

4 The proposal before the Court currently seeks approval for the construction of a residential flat building containing 66 residential units consisting of two buildings (Buildings A and B), basement car parking and landscaping works. Building A is a three and four storey building and comprises 52 dwellings. The fourth level is contained within a mansard roof form. Building B is five storeys and comprises 14 dwellings. There are 120 resident, visitor and disabled car parking spaces within the three basement levels. Vehicular access to the car park is via a central driveway from Bundarra Avenue.

5 The site (excluding the existing access handle) is zoned residential 2(d)(3) under Ku-ring-gai Planning Scheme Ordinance (KPSO) as amended by Ku-ring-gai Local Environmental Plan 94. Clause 25C provides aims and objectives for Part 3A. Part 3A addresses specific development on the railway corridor and the St Ives Centre, and includes the site. Relevantly, cl 25C(2)(e) provides objectives that require development for the purposes of a residential flat building or land within Zone 2(d)(3) to have regard to its impact on any heritage item in the vicinity of that development. Clause 25D provides matters for the consideration of residential zone objectives and impact on heritage. Relevantly, cl 25D(1)(b) states that consent must not be granted unless regard has been given to a statement describing the extent, if any, to which the carrying out of the development would affect the heritage significance of any heritage item in the vicinity of the site. Clause 61E states:

61E The Council shall not grant consent to an application to carry out development on land in the vicinity of a heritage item unless it has made an assessment of the effect the carrying out of that development will have on the heritage significance of the item and its setting .

6 In this case, The Briars at 14 Woonona Avenue is identified in Schedule 7 - Heritage Items of the KPSO. The site is also identified on the State Heritage Register where the Statement of Significance states:

“The Briars has State significance for historic, cultural, archaeological and aesthetic values. It is a good example of a transitional late Victorian/early Federation architectural style house. It is a prime example of the style of development prevalent in the local area at the turn of the 20th century. Historically, it is significant as it represents the first period of residential expansion in Wahroonga which followed the opening of the railway in 1890.
The house was built for William Alexander Balcombe whose family was of some note. His uncle was briefly associated with Napoleon Bonaparte during his period of exile on the island of St Helena. The house is well built and retains most of its original joinery, fireplaces, glazing, et cetera. The grounds, while reduced by subdivision retains several large trees.”

The evidence

7 Ms Deborah Laidlaw provided evidence for the council on planning matters and Mr Scott Robertson on heritage matters. Mr Nigel Dickson, the project architect, provided evidence for the applicant. The applicant also relied upon the Statement of Heritage impact provided with the development application by Mr Colin Israel.

8 Mr John Fuller, the owner of The Briars provided evidence on site as did Mrs Anne Brown of 13/1683 Pacific Highway, Ms Natalie Cooper of 2/1683 Pacific Highway and Mr Geoff McClelland of 4/16 Woonona Avenue.

Impact on The Briars

9 The area of dispute centred on the north western corner of Building A. The significant changes from that previously approved in Development Application 478/06 involved the use of a mansard roof form with dormer windows instead of flat roof and the use of the new roof area for bedroom accommodation in conjunction with the units on the level below. The numerical change involved a reduction in the eave height by some 400 mm but an increase in the overall height by 1.1 m, measured to the top of the new mansard roof. The additional height would take the form of the new roof form angling away from the eave.

10 The applicant provided photomontages that were said to depict the proposed building from a location viewed from the rear yard of The Briars. As there was a legitimate reason to dispute the accuracy of these montages, I have disregarded them from my consideration of the impact of the proposed development on The Briars. I am satisfied that the architectural plans are sufficient to address the principal issue of impact on The Briars.

11 The previous decision of Roseth SC in Coles and Merc addresses in some detail the impact of the proposed residential flat building on heritage significance of The Briars. On the plans submitted with this appeal, the impact was seen to be unacceptable and to provide a building that was acceptable a reduction from five storeys to three storeys was required. The reduction to three storeys was still seen as having an impact on the ambience of the rear yard of The Briars but given the zoning of the land; it was an impact that should be accepted. While the Court is not bound to follow the reasoning in this judgment, it nonetheless is a matter that can be taken into consideration.

12 In this case, the general proposition put by Mr Dickson was that the proposed development does not impact on the significance of The Briars as it provides a reduced eave height of 400 mm and while the overall roof height is increased by 1.1 m it is a pitched mansard roof that angles back from the eave thereby reducing its bulk when viewed from The Briars. The design ensures that the building will be seen as a three-storey building but with accommodation in the roof form. Overall Mr Dickson states that the impact on The Briars will be no greater than that of the approved building.

13 Mr Robertson comes to a different conclusion. He states that the application should be refused because of the unacceptable impact on The Briars. The height and bulk of the proposal will irrevocably alter the views out of the site to the degree that the heritage experience of being in The Briars will be lost. Mr Fuller expressed similar concerns.

14 With the benefit of the site view and an understanding of the architectural plans, I accept the conclusions of Mr Robertson. However, I do not accept that the proposed development would impact that significantly that the experience of being in The Briars would be lost. This is clearly an overstatement given the extent of the proposed changes. Conversely, Mr Dickson’s evidence that the impact will be no greater than the previous approval understates the impact on The Briars.

15 Importantly, I do not accept that the proposed development will be seen as a three-storey building. While the additional floor area could be technically categorised as a room in the roof, the architectural plans show that this additional floor area is not significantly smaller than the floor area on the floors directly below this area. The design clearly seeks to minimise the external appearance of this floor area through the mansard roof design but I am not satisfied that it will not unacceptably add to the bulk of the building when viewed from The Briars and consequently, the impact of the significance of this item. Even though the view of the building from the rear veranda of The Briars is some 50 m away, the additional bulk of the mansard roof form and dormers will be clearly visible. When viewed from the rear yard of The Briars, the roof form will become less visible but the presence of the dormer windows will still alert any viewers to the existence of the fourth level of accommodation.

16 The significance of The Briars was not disputed and, in my view, this significance calls for a more rigorous and subtle assessment of the potential impacts. I acknowledge that in other situations the additional bulk of the proposed development created by the mansard roof and additional accommodation may not be a matter that would warrant this level of rigour in the assessment, given the extent of the change from the previous approval and the distance from the adjoining property.

17 Having made an assessment of the effect of carrying out the development on the heritage significance of The Briars, pursuant to cl 61E of the KPSO I find that the effect on the significance of this item is unacceptable and, as such, development consent must be refused.

18 The orders of the Court are:

1) The appeal is dismissed.
2) DA 1136/07 for the erection of a residential flat building at 3-13 Bundarra Avenue and 10 Woonona Avenue, Wahroonga is refused.
3) The exhibits are returned.

___________________

G T Brown
Commissioner of the Court
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