Form Architects (Aust) Pty. Limited v Ku-ring-gai Council

[2017] NSWLEC 1107

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Form Architects (Aust) Pty. Limited v Ku-ring-gai Council [2017] NSWLEC 1107
Hearing dates:	27–28 February 2017
Date of orders:	24 March 2017
Decision date:	24 March 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is upheld. 2.   Development Application No. 590/15 for alterations and additions to the existing dwelling at 7 Braeside Street, Wahroonga, is approved, subject to the conditions of consent at Annexure “A”. 3.   The exhibits, other than exhibits 3, A, B, C, E and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to contributory building in the Wahroonga Heritage Conservation Area; whether the building contributes to the heritage significance of the Wahroonga Heritage Conservation Area; impact of the proposal on the heritage significance of the Wahroonga Heritage Conservation Area; impact of the proposal on the heritage significance of the adjoining dwellings identified as heritage items.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Form Architects (Aust) Pty. Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr P. McEwen SC (Applicant) Ms C. Morton solicitor (Respondent)   Solicitors: Sparke Helmore Lawyers (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	2016/345850
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 590/15 for alterations and additions to the existing dwelling (the proposal) at 7 Braeside Street, Wahroonga (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to mandatory conciliation on 27 February 2017, in accordance with the provisions of s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

3. Leave was granted by the Court at the commencement of the hearing for the applicant to rely on the amended proposal, which deleted a breezeway between the proposed garage and the existing dwelling, increasing the front setback of the proposed garage (exhibit A).

Issues

4. The Council’s contentions can be summarised as:

• The proposed development will have an unacceptable impact on the Wahroonga Heritage Conservation Area (Wahroonga HCA) and upon the adjoining heritage item at 3-5 Braeside Street, Wahroonga, contrary to the provisions of cl 5.10(4) of Ku-ring-gai Local Environment Plan 2015;

• The proposal will adversely affect views from the public domain to the heritage item at 3-5 Braeside Street;

• The proposal does not respect the established streetscape patterns;

• The proposed garage, pool cabana and additions to the front or northern side of the existing dwelling will encroach to an unacceptable degree into the front setback area;

• The proposed roofing material is unacceptable;

• The proposed alterations and additions do not complement the existing building or the streetscape;

• The proposed driveway crossover will require retaining walls to accommodate the level changes and this has the potential to adversely affect the streetscape. There is a lack of detail of the proposed driveway and the extent of the changes to accommodate compliant driveway grades.

• The proposal will reduce the area of landscaping in the front setback, which does not retain the established landscape character of the adjoining heritage items.

The site and its context

5. The site is on the southern side of Braeside Street, Wahroonga, between Grosvenor Road to the west and Wahroonga Avenue to the east. The site is relatively shallow in the pattern of subdivisions in the area, having been subdivided from the original grounds of 3-5 Braeside Street. It has a site area of 929sqm, with a front boundary to Braeside Street of 27.43m and a depth of 33.87m.

6. The existing dwelling is a single storey modest cottage, constructed in 1985. The existing cottage is positioned at the rear of the allotment, with a rear setback of 3.1m.

The proposal

7. The proposal is for alterations and additions to the existing dwelling, including a first floor addition, a new pool and cabana and double garage in the front setback of the dwelling and a new driveway on the western side of the front setback, removing the existing driveway on the eastern side.

Planning framework

8. The site is zoned R2 Low Density Residential pursuant to LEP 2015. The objectives of the R2 zone, to which regard must be had, are:

• 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.

9. Clause 5.10 of LEP 2015, Heritage Conservation, has the following relevant objectives:

(a) to conserve the environmental heritage of Ku-ring-gai,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

10. Clause 5.10(4) of LEP 2015 is a mandatory consideration, as follows:

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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

11. 3-5 Braeside Street is a heritage item (item 837, schedule 5, LEP 2015) and 9 Braeside Street is a heritage item (item 839, schedule 5, LEP 2015).

12. Section 2, Part 19 of Ku-ring-gai Development Control Plan (DCP) contains the objectives and controls for heritage items and heritage conservation areas. The aims of the heritage controls are to:

1. retain, conserve and enhance the Heritage Items, HCAs and their associated settings;

2. ii) ensure the heritage significance, streetscape and landscape character of HCAs are maintained;

3. iii) ensure alterations and additions to Heritage Items and within HCAs respect those buildings and do not compromise the significance and character of the individual Heritage Items or the HCAs;

4. iv) ensure new development in the vicinity of Heritage Items and HCAs respects the heritage context and is sympathetic in terms of form, scale, character, bulk, orientation, setback, colours and textures and does not mimic or adversely affect the significance of Heritage Items or HCAs and their settings.

13. Applicants are referred to Council’s Heritage Inventory Sheets for Heritage Items and HCAs as supporting heritage documentation.

14. The DCP relevantly includes the following text in Part 19:

This Part identifies various controls that specifically apply to contributory properties. For the purpose of this DCP, Contributory Properties are buildings and sites within a HCA which are deemed to exhibit one or more of the following characteristics:

1. buildings and sites that make an important contribution to the character and significance of the HCA. They can be from a key historical layer, true to an architectural type, style or period, or highly or substantially intact including their garden setting. Where subdivision has occurred, the subdivision is within the key historical period or the area.

2. ii) buildings and sites which are altered from their original form but are recognisable and could be reasonably reinstated to that condition or the alterations are not considered to be detrimental to the integrity of the building; for example, a building that has been rendered or painted or where the roof cladding has been replaced but the form is otherwise legible.

3. iii) buildings and sites with new layers/additions sensitive to the style, form, bulk, scale and materials of the original building.

Note: Contributory buildings do not necessarily need to be high-quality buildings but should represent the key historical period of the HCA. An HCA may also contain high-quality buildings which are not necessarily from the key historical period.

15. 19C.2 of the DCP includes the following in relation to building setbacks:

Objectives

1. To conserve and maintain the character and significance of individual properties and streetscapes in the HCA by maintaining the established pattern of front and side boundary setbacks.

2. To ensure the siting of new alterations and additions respect and contribute to the established streetscape patterns.

Front and Side

1 The siting of alterations and additions is to maintain the established streetscape pattern, including the main dwellings, garages, carports and garden structures. Refer to Figure 19C.2-1.

3 Where variations in setbacks exist within the immediate vicinity and the streetscape, the larger setback will apply.

16. 19C.4 of the DCP includes the following in relation to access and parking:

Objectives

1. To ensure that modifications to provide access do not adversely affect significant built fabric of either individual buildings or the HCA as a whole.

2. To allow for on-site car parking where possible while retaining the character of the property, the streetscape and significance of the HCA.

3. To ensure that driveways do not have any adverse visual impact on the immediate streetscape and historic patterns in the HCA.

4. To minimise the visual impact of new car parking by locating it at the side or rear of properties, where possible.

5. To ensure battle-axe driveways make a positive contribution to the streetscape and the HCA.

6. o allow for on-site car parking where possible while retaining the character of the property, the streetscape and significance of the HCA.

7. D To ensure that new garages and carports do not have any adverse visual impact on the immediate streetscape and historic patterns in the HCA.

8. To minimise the visual impact of new car parking by locating garages and carports at the side or rear of properties, where possible.

New Garages and Carports

8. Where feasible, new car parking is to be consistent with the historic placement of parking structures on the site.

9. New garages and carports are not permitted forward of the building line and are to be located at least 1.5m minimum behind the existing front building line, preferably to the rear of the main building.

10. New car and vehicle parking forward of the front building line may be permitted where a minimum 3m access to the side and rear of the building is not available.

11. New garages, carports and driveways are to be of simple design and not challenge the mass, bulk and architectural design detail of the house and the surrounding streetscape.

17. 19C.5 of the DCP permits contemporary materials for new work where the detailing, proportions, texture and colour range blend with the existing character of the HCA.

Public submissions

18. Two resident objectors provided evidence at the commencement of the conciliation phase of the proceedings on-site. They own and reside in the neighbouring heritage item and are concerned about over-looking into their property from the first floor addition of the proposal and the impact of the proposal on their amenity and the heritage significance of the Wahroonga HCA. They are concerned that the two storey proposal will have a detrimental impact on the streetscape.

19. The Council does not press a contention in relation to the form of the first floor addition of the proposal and I accept the Council’s assessment.

Expert evidence

20. The Council relied on the expert evidence of Mr Paul Dignam (heritage), Mr Adam Richardson (planning) and Ms Tempe Beaven (arboriculture and landscaping).

21. The applicant relied on the expert evidence of Ms Jennifer Hill (heritage), Mr Kim Burrell (planning) and Ms Trish Dobson (landscape architect). Mr Ron Edgar (architect) also provided evidence on-site.

Consideration

22. The heritage experts disagreed on the contribution the existing cottage makes to the heritage significance of the Wahroonga HCA. They agreed that the site was subdivided from the grounds of 3 Braeside Street in 1983 and the cottage was constructed in 1985. They agreed that the cottage is designed as an imitation of a mid-20th century style.

23. The statement of significance for the Wahroonga HCA is as follows (Heritage Inventory Sheet, exhibit 8):

Wahroonga HCA is of heritage significance for its distinctive residential streetscapes which evidence the transformation of early subdivision of the 1890s in to the later rectilinear grid lot street 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 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 Progress Association in the early 20th century (which included Sulman as a member) and have resulted in a high-quality and distinctive residential landscape.

24. In Mr Dignam’s view, the existing cottage is of aesthetic significance and contributes to the character of the Wahroonga HCA, notwithstanding the discovery that the cottage is contemporary. In his opinion, the cottage is designed to replicate the American Colonial revival style of architecture. He believes that the landscaping in the front setback is a secondary element in terms of the contribution of the property to the Wahroonga HCA.

25. According to Ms Hill, appropriate criteria should be used for identifying a property as contributory to the heritage significance of a HCA, as dictated by the guideline publications including ‘Conservation Areas’, published by the Heritage Office of the OEH. Most commonly, a building is contributory to the collective significance of the HCA if it dates from the key period of development when most of the development identified as significant to the HCA occurred. In this case, the periods identified by the heritage inventory sheet for the Wahroonga HCA are the Federation and Inter-war periods and the existing dwelling does not date from either of those periods of development. In Ms Hill’s opinion, contribution to the significance of an HCA is about collective value and not necessarily individual genius; and the identification of contributory buildings should be based on historical research and evidence, including studying the subdivision maps, 1930s Water Board maps and aerial photographs. It is inappropriate, in her view, to simply identify a property as contributory because you like the look of it, as that would constitute an uninformed assessment. Ms Hill noted that incremental later subdivisions in the Wahroonga HCA are not given heritage significance in the statement of significance for the Wahroonga HCA and in her view the design of the building looks backward to a historic style, and although it is inoffensive, it makes a neutral contribution to the collective significance of the Wahroonga HCA.

26. The experts agreed that there is a variable front setback in the street and that the proposal will result in a consistent front building alignment with the dwellings to the east at 9 and 11 Braeside Street. Mr Richardson agrees with the applicant’s experts that it is reasonable to allow development forward of the existing front façade of the cottage, provided that the proposal has an acceptable impact on the heritage significance of the Wahroonga HCA.

27. The experts disagreed on whether the existing driveway at 7 Braeside Street pre-dates the 1983 subdivision. Mr Dignam believes that the driveway was part of the grounds of 3-5 Braeside Street before the subdivision.

Findings

Whether the existing cottage is contributory to the heritage significance of the Wahroonga HCA

28. The DCP refers applicants to the Council’s heritage inventory sheets for heritage items and HCAs, but it makes no reference to the “Building contribution maps and intact pre-1943 development maps” tendered by the Council with the title “Appendix 3” (exhibit 6). Exhibit 6 was identified by Mr Dignam as an appendix to the heritage study for northern Ku-ring-gai carried out by Paul Davies Heritage Consultants, on which the heritage listing of Wahroonga HCA is based. Mr Dignam’s evidence is that the maps have been exhibited as part of the public notification process for the listing of the HCAs in LEP 2015.

29. I note the maps in exhibit 6 are not referred to by the planning instruments; nevertheless, I have considered the maps because Council could have legitimately raised a contention that the building contributes to the heritage significance of the HCA without having to rely on the maps. The site falls within Study Area Number 28 (exhibit 6), identified as “Extension to Wahroonga Precinct” and the map has identified the site as “Pre-1943 development still extant and intact”, which has been shown by the agreed evidence of the heritage experts to be incorrect. The site is identified on Study Area Number 27 (exhibit 6) as “contributory item”.

30. Notwithstanding the identification of the property as a contributory item on the map, the heritage experts disagreed on whether it does in fact contribute to the heritage significance of the Wahroonga HCA. I prefer Ms Hill’s opinion that the existing dwelling makes a neutral contribution to the heritage significance of the Wahroonga HCA for the reasons she gave. It appears that the dwelling was incorrectly identified as dating from pre-1943 (map 28A of exhibit 6) despite evidence to the contrary that would have been readily available from Council’s own records, subdivision maps, Water Board maps, aerial photographs and an informed interpretation of the architectural detailing of the building. The property has most likely been identified as contributory on the basis of the erroneous assessment of its date of construction and not because it is inoffensive to the character of the Wahroonga HCA. A contemporary building sympathetic to the character of a HCA, but not contributory to the collective historic and aesthetic significance of the HCA, can only ever be neutral (or intrusive) in its contribution to the identified heritage significance.

31. To argue that the contemporary dwelling is contributory to the significance of the Wahroonga HCA because it blends in with the historic architecture, or is designed in a retro-style that looks like the genuinely historic buildings in the HCA, without any reference to objective criteria, introduces an indefensible arbitrariness to the assessment of buildings within a HCA. The assessment of buildings that make up a HCA must be based on objective criteria, or else the process of identifying contributory buildings and landscapes in a HCA is entirely subjective, unrobust and unjust.

28. I accept that the landscaping in the front setback and extant mature trees contribute to the character of the Wahroonga HCA and the setting of 3-5 Braeside Street, as part of its former grounds, although it is not clear what elements of the landscape date from the time when the property was part of the grounds of 3-5 Braeside Street.

Impact of the proposal on the heritage significance of the Wahroonga HCA

33. Section 19C.5 of the DCP permits contemporary materials for new work where the detailing, proportions, texture and colour range blend with the existing character of the HCA. Zinc roof cladding is a high quality and beautiful material which will blend harmoniously with the various roof claddings extant in the Wahroonga HCA.

34. I accept the agreement of the experts that there is a variable front setback in the street and Mr Richardson’s agreement that it is reasonable to allow development forward of the existing building line. I am satisfied that the proposal will have an acceptable impact on the heritage significance of the Wahroonga HCA, because a generous landscaped front setback is maintained by the proposal, consistent with the front setbacks of 9 and 11 Braeside Street. The original property of 3-5 Braeside Street was extensive and the driveway access was originally from Burns Road (exhibit G). It would be an unreasonable imposition to expect a dwelling on this site to relate to the front setback of 3-5 Braeside Street, as the neighbouring heritage item to the west was not designed to orientate to Braeside Street, it orientates to an eastern entry from the former driveway, and it sits within generous grounds. The grounds of 3-5 Braeside Street remain significantly larger than the relatively smaller and shallower site of 7 Braeside Street.

35. I am satisfied that the proposal does not adversely impact on the amenity or the heritage significance of the neighbouring heritage item at 3-5 Braeside Street, because the proposal has a consistent front setback with the properties to the east; the proposal maintains a generous and vegetated front garden; the side setback of 2.335m is appropriate and the proposal does not obstruct views to 3-5 Braeside Street not already obstructed by vegetation.

36. I accept the architect’s evidence given during the conciliation conference on-site that in balancing the competing priorities in the brief, he came to the conclusion that the preferable solution for to the arrangement of domestic activities is achieved by relocating the garage to the western side of the front setback. In accepting his evidence, I note that this is a particularly constrained site, with the cottage positioned at the rear of a wide and relatively shallow site, as a function of the proportion of the subdivision in 1983. The only reasonable way to develop this residential dwelling, to meet contemporary expectations consistent with a suburban dwelling, is to use a portion of the front garden for a swimming pool and outdoor living. I accept that the ideal position for the pool, given the constraints of the site, is the eastern side of the front setback, so that it is directly accessible and visible from the living areas. I am satisfied that the proposal provides a front setback consistent with the neighbouring dwellings and maintains the established pattern of front and side boundary setbacks, as required by the objectives of 19C.2 of the DCP. I am satisfied that the proposal respects and contributes to the established streetscape patterns.

Removal of tree 11

37. I accept Ms Beaven’s opinion that if all other matters are satisfactorily dealt with, then the proposed removal of Tree 11, a prominent Gordonia, adjacent to the garage, is acceptable, on the basis that a replacement tree is planted as proposed (“replacement Gordonia” exhibit C).

Driveway crossover

38. The Council contends that the necessary cut and batter and possible retaining walls within the footway to enable compliant and accessible driveway grades and transitions from the centre line of the roadway to the garage as required by Australian Standard 2890.1-2004 will introduce additional built elements into the streetscape that were not envisaged in the application. These structures have a potential to cause a greater impact to the streetscape, however, cannot be quantified due to a lack of detail as to the extent of necessary change to the footway. I am satisfied that this contention is adequately dealt with by way of condition, as follows (exhibit 5):

19.   Driveway crossing levels

Prior to issue of the Construction Certificate, driveway and associated footpath levels for any new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings".

Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant development application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment.

This development consent is for works wholly within the property. Development consent does not imply approval of footpath or driveway levels, materials or location within the road reserve, regardless of whether this information is shown on the development application plans. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the required alignment levels fixed by Council may impact upon these levels.

The construction of footpaths and driveways outside the property in materials other than those approved by Council is not permitted.

Reason:   To provide suitable vehicular access without disruption to pedestrian and vehicular traffic.

39. I accept Ms Hill’s opinion that the existing driveway on the site is contemporary and there is no evidence that the existing driveway pre-dates the subdivision of the allotment in 1983.

40. The architectural drawings are to show proposed reduced levels of the driveway crossover and driveway and the position of retaining walls, if required.

Conclusion

41. For the reasons set out in the judgment, I am satisfied that the proposal can be granted consent.

Directions

42. The following directions were handed down on 3 March 2017:

The architectural drawings are to be amended as follows:

To show notations for the roof cladding as ‘Zinc roofing’ (or equivalent) and not ‘metal’ as metal is not sufficiently specific;

To incorporate the amendments described in condition 22 (exhibit 5);

To show proposed reduced levels of the driveway crossover and driveway and the position of retaining walls if required; and

The set of plans are to include the amended layout in exhibit A, with the breezeway between the existing dwelling and the proposed garage deleted.

New revision numbers and a date are to be added to the amended architectural drawings.

The applicant is to file and serve the amended documentation no later than 24 March 2017. Conditions 1 and 22 will be updated accordingly and orders will be made in chambers.

43. The applicant filed the amended documentation on 24 March 2017.

Orders

44. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 590/15 for alterations and additions to the existing dwelling at 7 Braeside Street, Wahroonga, is approved, subject to the conditions of consent at Annexure “A”.

3. The exhibits, other than exhibits 3, A, B, C E and F, are returned.

____________

Susan O’Neill

Commissioner of the Court

345850.16(C) Slip Rule (129 KB, pdf)

345850.16 (Plans) (8.17 MB, pdf)

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Amendments

27 March 2017 - Final Orders

27 March 2017 - Plans attached to Judgment

28 March 2017 - Pursuant to UCPR 36.17, the slip rule, amend orders of 24 March 2017 in Condition 1 of Annexure A.

Decision last updated: 28 March 2017