Frykberg & Anor v Waverley C

[2006] NSWLEC 24

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Frykberg & Anor v Waverley C [2006]  NSWLEC 24

PARTIES:
APPLICANT
Jarrod Frykberg and Kimberley Scott

RESPONDENT
Waverley Council

CASE NUMBER:     11135 of        2005

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan No 2
Waverley Development Control Plan No 9
Waverley Development Control Plan No 13
Waverley Development Control Plan No 14
Waverley Development Control Plan No 19

CORAM:        Hoffman C

DATES OF HEARING:        10-11/01/06

EX TEMPORE DATE:          11/01/2006

LEGAL REPRESENTATIVES

APPLICANT
Mr V. Conomos, solicitor
of Pike Pike and Fenwick

RESPONDENT
Mr M. Staunton, solicitor
of Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

11 January 2006

11135 of 2005                   Jarrod Frykberg and Kimberley Scott v Waverley C

JUDGMENT

1. This is a Class 1 Appeal No. 11135 of 2005 between Frykberg J and Scott K v Waverley Council in regard to the refusal of demolition of an existing house and erection of a new part one storey and part two storey house at No 7 Brown Street, Bronte.  The locality is zoned Residential 2(a) under the Waverley Local Environmental Plan 1996.

1. Brown Street, Carter Street and Gibson Street consist mainly of detached houses of one and two storeys although there are two contemporary semi-detached townhouses three storeys high at Nos 26 and 26A Brown Street.  Uphill on Brown Street and beyond the south is mainly detached houses.  Downhill to the north, about a hundred metres, Brown Street passes through Bronte gulley just past No 32 Brown Street, and beyond that are three storey flats in a medium density zone.  To the west of Brown Street the land rises steeply up to a ridge on which a large block of flats can be seen from the site and the street.

1. Brown Street has trees in the road reservation.  The houses generally have shrubs or small trees although some large mature trees exist.  The existing houses date from the early 1900s up until quite recently.  Most have been altered with extensions or changes such as re-cladding and aluminium windows, new roofs, etcetera.

1. The proposed new house is contemporary in design with two storeys at the front and a single storey at the rear. A lap pool is proposed on the south side in the rear yard.  Cars are to be housed tandem fashion in a carport on the south side of the block. 

2. The two storey section of the house has about three metre side boundary setbacks both sides.  The living room on the ground floor has folding glass doors on both sides giving direct access to the courtyards within the 3 m setbacks.  The one storey kitchen and family room at the rear abuts the north side boundary giving a wider yard for the lap pool and terrace.

1. The main roof is flat but has a skillion section to provide a skylight on one side and a north-facing panel of photovoltaic cells for energy generation.  The roof to the kitchen and family room is a skillion with north-facing high windows and some south-facing dormer-like skylights. 

2. The land is 445 sq m in area with 12.19 m frontage and 36 m depth.  There is a fall of about 1.5 m from the street to the rear towards Carter Street as the terrain slopes towards the beach a few blocks away.  There is also a rise of about 1 m from north to south across the width of the lot uphill towards Gibson Street. 

3. The issues in the appeal are:

   1.Whether or not the proposal is acceptable having regard to cl 3 Specific Aims for Housing (7)(d) and (f) of Waverley Local Environmental Plan 1996 as to the proposal’s compatibility with surrounding development and improving the amenity of the residential area.

   2.Whether or not the proposal complies with the Residential 2(a) zone objective (b) of cl 10 of the Waverley Local Environmental Plan 1996 with regard to maintaining and improving the amenity and character of the locality.

   3.Whether or not the proposed development is contrary to the Waverley Development Control Plan No 2 Dwelling House and Dual Occupancy Development in respect of the following provisions:

   (a) the maximum allowable height stipulated in cl C6.1.1,

   (b)the minimum site and rear setback provisions stipulated in cl C8.1.1,

   (c)the pool location provision stipulated in cl C11.1.

   Issues 3(d), 3(e) and 3(f) were deleted.

   4.Whether or not the existing dwelling has heritage significance and its retention is warranted

   5.Whether or not the proposed dwelling is suitable for the site having regard to its design and visual    qualities of the setting and streetscape.

   6.Whether or not the proposal is in the public interest.

4. The attendances at the on-site hearing were:

   Objectors:

   ·              objectors Ms R Lawson of No 16 Gibson Street,

   ·              Mr M Scully of No 2 Carter Street,

   ·              Ms N Searly of No 16 Gibson Street and

   ·              Mr G Searly, Ms J Lucas of No 22 Gibson Street,

   ·              Ms P Fensham of No 2 Carter Street and

   ·              Mr and Mrs Stanford of No 12 Carter Street. 

5. Appearances for the council were:

   ·              Mr M Staunton, solicitor, and

   ·              Mr G Hartley, solicitor, with

   ·              Mr C Brady, heritage consultant.

6. Appearances for the applicant were:

   ·              Mr V Conomos, solicitor,

   ·              Mr J Frykberg, applicant,

   ·              Ms K Frykberg, owner,

   ·              Mr S Davies, heritage consultant,

   ·              Mr A Smith, planning consultant,

   ·              Mr J Dimopoulos, architect,

   ·              Mr K Kiriarcos, architect,

   ·              Mr N Katz supporter of the proposal and resident of No 11 Brown Street,            and

   · Mr and Mrs Youden, supporters of the proposal and residents of No 5 Brown Street.

7. The Court-appointed expert was Mr R N Dickson architect town planner and urban designer. 

1. There was also Exhibit L, an acoustic report on the proposed lap pool in regard to the likely noise impact on neighbours by its operation and use by swimmers.  The report was by Mr B Murray, acoustic engineer, and he was not required for cross-examination.

1. The existing house appears to have been extended three times towards the rear.  This is obvious from the change of material seen along its north side elevation.  The third extension is a single storey granny flat that runs the length of the backyard on the south side.  It has zero setback to the southern boundary and has a masonry wall on the boundary about 2.8 m high. 

2. Along this boundary are three neighbours.  No. 5 Brown Street and Nos. 14 and 16 Gibson Street.  Number 5 is a California bungalow with a second storey addition owned by the Youdens.  They have no objection to the proposal.

1. Numbers 14 and 16 Gibson Street both want the retention of the 2.8 m high masonry boundary wall as it gives privacy and security to their backyards and removal of it may disturb existing vegetation and, in No 14’s case, the tool shed.  The applicant during the hearing stated it was happy to retain the wall although it may need to be rebuilt to ensure its stability.  In doing so the tool shed on No 14 and the vegetation on No 16 would be carefully maintained and restored.

1. The other concern of No 14 is the height of the single storey kitchen and family room of the proposal because it has a very high vaulted ceiling and roof.  It would reduce No 14’s ability to see the local view down to the vegetation in the Bronte gulley and the flats and houses beyond to the north.  The applicant offered to lower the roof by 600 mm.

1. Number 16 was concerned about view loss, overlooking from the first floor bedroom windows of the proposal, and night-time lighting of rooms causing glare from the skylights of the proposal.  Number 16 was also concerned about noise from the proposed lap pool.

1. At the rear of the subject lot is No 18 Gibson Street and No 4 Carter Street.  Neither objected to the proposal.  Number 18 is currently undergoing extensive renovations with a three storey rear elevation and a pool in the backyard next to No 16 Gibson Street.  Due to the corner lot layout at the intersection of Gibson and Carter Streets No 2 Carter Street had no common boundary with the subject lot but it could be seen from the rear verandah of No 2 diagonally across the backyard of No 4.

1. Number 2 Carter Street objected to the potential privacy impact from a Juliet balcony to the third bedroom of the proposal and possible noise from the proposed lap pool.  Also No 2 said the contemporary design of the proposal was ugly and could not be screened from view.  To some extent the two storey section of the proposal would obscure a western aspect to vegetation and a block of flats on the ridge above Brown Street, however other parts of the aspect to the north-west and north would be unobstructed.

1. Number 12 Carter Street had no direct impact from the proposal but put the opinion that in their own case they had built a two storey extension at the rear of their original house rather than demolish it.  They felt that was a more sympathetic approach to the streetscape than demolition and building a contemporary design. 

2. Numbers 12 and 2 Carter Street and No. 16 Gibson Street together drew attention to recent alterations and additions to houses in Gibson Street, one of which is a heritage item at No. 26.  It added to existing Federation house in a matching style rather than demolish and build anew.  They all preferred this approach to the streetscape rather than the demolition of the existing and the contemporary new house design of the proposal.

1. Number 5 Brown Street, the southern neighbour of the proposal, had extended the California bungalow with a sympathetic two storey addition but interestingly the owner, being an architect, said he quite liked the proposal with its contemporary design and had no objection. 

1. Number 9 Brown Street, the northern neighbour of the proposal, was a 1970s brick single storey house and no objection to the proposal was lodged.  This was of some relevance because the rear single storey kitchen and family room of the proposal had zero setback to the north side boundary.  Coincidentally No 9 had an existing long masonry tandem garage also with zero setback to the same boundary and the kitchen and family room of the proposal would abut it. 

1. Number 11 Brown Street also supported the proposal.  Mr Katz had his architect look at the drawings and formed the opinion it was a very good design.  It achieved a five star environmental rating on the BASIX assessment.  He felt the reaction of some of the residents in the locality to the contemporary design was an overreaction against the three storey townhouses approved by Waverley Council on Nos. 26 and 26A Brown Street.  By contrast he said, this design is one and two storey with a nice street presentation including a drive entry only one car wide so the carport did not dominate the appearance, and it had large 3 m side setbacks to the second storey of the proposal so it was not built boundary-to-boundary and was in good proportion to its allotment.

1. Number 11 said he had signed a petition in support of the proposal but the petition was not tendered in evidence.

1. The applicable statute is the Waverley Local Environmental Plan 1996.  The application controls are the Waverley DCP No 2 Dwelling Houses and Dual Occupancy, DCP No 9 Reduce Crime Through Design, DCP No 13 Energy-Smart Homes, DCP No 14 Land Use and Transport, DCP No. 19 Waste Avoidance and Resource Recovery.  The applicant tendered with no objection from the respondent the amended plans in Exhibit A that are referred to as the version F designs.  The amendment of the issues meant that the only statute and controls in contention was the Waverley Local Environmental Plan 1996 and DCP No. 2. 

2. Apparently Mr Smith had prepared the statement of environmental effects for the original application and had been involved in consultation that resulted in the various earlier updates of the original plans.  The version F plans had been notified and at the hearing the architects, Mr Dimopoulos and Mr Kiriarcos, explained the drawings and the model to those at the hearing.  This resulted in issues 3(d), (e) and (f) being withdrawn.

1. In regard to issue 3(a) Mr Dickson said the height exceedence was only about 300 mm and was caused by the top edge of the skillion roof containing the photovoltaic cells.  It was only a small rear portion of the roof that caused the excedance, and that did not add unacceptable bulk to the building, nor impact on privacy or view loss and would not be readily visible from the street. 

2. He considered the other objectives of the height control in connection with Issue 5 and reviewed the heritage experts’ reports to form an opinion on streetscape, character and scale of the building proposed.  His own observation was the street had a mixed character of houses of one and two storey with the three storey townhouses.  The houses considered to have the possibility of being the core of a conservation area had all been altered and added to.

1. Although the proposal is a contemporary design, of which there were others in the locality, it would not be out of keeping with the scale and streetscape visually, he said.  Its addition would fit with the mixture of various ages and designs and houses in the locality.  He deferred to Mr Brady and Mr Davies in regard to the heritage issue No 4.

1. In regard to issue 3(b) Mr Dickson noted that quite a few houses in the vicinity and adjoining the proposal had small rear setbacks due to extensions such as the granny flat on the subject site.  He said the main two storey portion of the proposal complied with the rear setback of the main parts of adjoining houses at Nos 5 and 9 Brown Street giving a 12.5 m deep backyard. 

2. The location of the one storey kitchen and family room abutting the northern boundary is acceptable in his opinion due to the matching zero setback of the one storey building on No 9 abutting the proposed kitchen and family room.  That design ensures no solar access or ventilation or privacy impacts on neighbours and does not impact on their amenity.  With the lowering of the roof of the kitchen and family room it would not interfere with neighbours’ outlooks.

1. Mrs Lawson at No 16 Gibson Street was concerned about the glare from the internal lighting of the dormer skylights to the kitchen and family room.  Mr Dimopoulos explained the plan showed the dormers were actually glass prisms with no actual lights within them, so at night you might see the dormers as a glass prism but there would be no glare such as Mrs Lawson feared.

1. On going to Mrs Lawson’s house I saw its pleasant rear yard had a dense growth of non-deciduous olive trees obscuring nearly all aspects except glimpses towards the subject property.  There was a high murraya hedge on the rear boundary, higher than the existing boundary wall, and a quite attractive fountain.  I did not think Mrs Lawson’s fears on view loss or glare from lights would be realised. 

2. The second storey portion of the proposal was west of the common boundary of No 5 Brown Street and No 14 Gibson Street so it would obstruct little of the glimpses that could be seen in that direction through the vegetation from Mrs Lawson’s property. Likewise the upper storey bedroom windows and the rear Juliet balcony could pose little in the way of privacy loss. It would be normal suburban amenity. Perhaps it was the three storey extensions at No 18 Gibson Street beside Mrs Lawson that had made her so cautious. I think the proposal is acceptable in these regards with minor impacts on her.

1. The lap pool noise is another of her concerns and the acoustic report from Mr Murray indicated, and was accepted by Mr Dickson as showing the high masonry boundary wall would give more noise reduction for Mrs Lawson than for No 5 Brown Street. The latter is the worst case impact in Mr Murray’s calculations. The criterion he adopted was 44 dBA in the evening as the maximum allowable.

1. At No. 5 its ground floor would be less than 44 dBA and its first floor level windows might be subjected to up to 53 dBA during the use of the pool. The tests were based on known industry norms for backyard swimming pools. Mr Murray said the use of lap pools such as the proposal involve less activity and noise. He concluded No 5 Brown Street would in practice have acceptable acoustic amenity and for Nos 14 and 16 Gibson Street the criterion would not be exceeded and so impact on Mrs Lawson was very acceptable.

1. Mr Scully at No 2 Carter Street was also concerned about the lap pool noise.  It seemed to me he was a much greater distance from the pool than the other neighbours, and he was downhill, so that noise from the pool was likely to project above any point of hearing on his property, and therefore have even less impact than on those Mr Murray had assessed.

1. I have also considered the privacy matters for the sightlines from the Juliet balcony of the third bedroom proposal to Mr Scully’s back verandah and kitchen.  From the survey plan it was measured at thirty-two metres from the Juliet balcony to the back verandah.  That is equivalent to the space between houses across from each other in Brown Street with a 6 m front setback each. This distance of separation is so great, and the use of the Juliet balcony to a third bedroom so occasional, I do not believe there could be unacceptable privacy impacts in a normal suburban amenity situation.  Added to that, the proposal has a tree and a murraya hedge proposed along its back boundary that would in time either screen or filter any possible sightlines.

1. Returning to the lap pool, the purpose of the controls on swimming pool locations in the development control plan is to minimise adverse impacts on neighbours.  Mr Dickson was satisfied that was achieved to acceptable levels. 

2. He also adopted cl 5.9 to 5.30 from Mr Smith’s report in Exhibit K on streetscape and visual impact.  Overall therefore Mr Dickson concluded there was compliance with cll 3(7)(d) and (f) of the Local Environmental Plan in that it would be compatible with surrounding development and I agree with that provided Issue 4 is found in the applicant’s favour.

1. Issue 4 on the heritage value of the existing house on No 7 Brown Street came down to clear disagreement between Mr Brady and Mr Davies and really became the determinative issue.  They had conferenced and produced a joint report in Exhibit 5.  Their primary disagreements were on:

   (a)whether the existing house had heritage significance and,

   (b)whether the fabric of the house had changed so much that it was not worthy of any classification as a heritage item and,

   (c)if the existing No 7 was to be demolished whether the proposal had appropriate massing in the streetscape.

2. On (c) Mr Brady said the second storey should be located further back from the street at about the same distance as the centre of the adjoining houses’ hip roofs. 

3. They achieved agreement on:

   (1)that the history of the site and locality researched by Mr Davies in Exhibit J and Mr Brady in Exhibit 3 were essentially the same, and

   (2)that if the existing No 7 was to be demolished the contemporary design of the proposal was cohesive with the setting of the mixed ages and styles of other houses in the streetscape.

4. In dealing with  the heritage issue I recite briefly the history of the subject house.  It was built in about 1909 along with about eleven similar houses in Brown Street, three in Gibson Street and five in Carter Street.  They were all single storey weatherboard with a bay window on one side of the front elevation and a verandah on the other.  The bay window had a flying gable roof above it that blended into a pyramidal shaped hip roof over the rest of the house.  The house was originally only a four room layout with a central hallway and amenities at the rear.

1. The initial subdivision had come from earlier land grants of 5 aces in 1840.  The slope of the land and its remoteness had not made it suitable for agriculture or housing until the advent of the tram system in the early 1900s.  The initial subdivision of the 5 acres in 1904 had not resulted in significant sales.  It was not until 1908 when the Inter-Colonial Investment and Building Company Limited financed the construction of the houses mentioned previously, as speculative workers’ cottages for sale, that the development of the subdivision commenced.  That company financed houses in various parts of Australia for the same speculative purpose, including some in Western Australia.  It seemed that many of its houses had similar design features to those seen on the Brown Street houses.  The financier later became part of the Mercantile Mutual Insurance company.

1. The house at No 7 passed through a number of owners over the years.  In the 1920s there was a second wave of California bungalow houses built on the vacant lots at that time.  Based on the New South Wales Heritage Manual, Mr Brady says the particular house and the group of houses represent a rare remaining example of weatherboard construction of project homes of the early 1900s by a national financier.

1. The houses are still recognisable and their cohesive forms, the remnant detailing and subdivision pattern, mark them as having community or cultural value as a low-cost housing group, and are individually worthy of heritage listing.   Waverley Council was currently exhibiting a draft proposal to list a conservation area in Brown Street.

1. On a cultural and technical level Mr Brady said the detached houses represented a move away from attached houses, and brick or masonry construction in the evolution of Bronte and Sydney overall.  Also the subdivision for detached houses showed the evolution, from medium density housing with common walls between houses, to the suburban pattern of the 1900s on the edges of Sydney at that time.  Mr Brady said the subject house and the other similar ones on the group were rare.  He agreed there was no association with any persons of note.

1. Mr Davies said this type of housing was not uncommon or rare.  There were many existing more worthy groups already listed as heritage items.  Mr Brady himself had identified similar examples at St James Road Waverley, Struggletown at Randwick, the lower areas of the Underwood estate at Paddington, and the village of Watsons Bay. 

2. Mr Davies said all of those houses in the original group in Brown Street had been substantially modified such that the flying gable and the bay window and timber construction were perhaps the only identifiable common features.

1. If there was a group in Brown Street, No 7 is detached from them and could not reasonably be kept as part of the group.  The changes to all the cottages had eroded any value they may have had as a group, but even in their original state they could not be described as a fine example of the type on aesthetic grounds or technical or creative grounds.

1. The evolutionary history of the area was well documented and able to be understood, Mr Davies said.  The Brown Street locality was not a key site or an evolutionary turning point that might give it the historical or cultural status that would warrant conservation.  Mr Davies said the existing house and the group just did not meet the threshold tests of the Burra Charter for heritage significance.

1. The applicant submitted that the draft study council had on exhibition was not even a draft development control plan and could not carry the weight necessary to be determinative.  Its ultimate fate, whether it would be amended, adopted or thrown out, was indeterminate at this early stage.

1. I agree with that submission and conclude that the decision on this matter needs to be made on streetscape grounds and that the subject house had been so altered it could not be worthy of heritage conservation.  A list of changes to it gives some confirmation of that, namely:

   (1)          most of the house is no longer original,

   (2)all of the windows are now aluminium framed and have been enlarged from the original and changed in style,

   (3)the roof is now tiled and not corrugated iron,

   (4)the chimneys have been demolished,

   (5)the timber weatherboards have been replaced,

   (6)the verandah floor is no longer tessellated tiles and the verandah posts have changed,

   (7)there has been three extensions to the rear,

   (8)the side elevations are different to the original,

   (9)the rear elevation is different to the original, now featuring sliding glass doors and a deck,

   (10) the granny flat has been added at the rear,

   (11) all the original detailing and joinery and cladding of the original four rooms of the house has gone,

   (12)all the floors have been replaced, and

   (13)all the fireplaces have been removed.

2. The contemporary design style of the proposal was agreed by Messrs Brady, Davies and Dixon as being acceptable.  It was the massing, mainly of the second storey, and the finish materials that were the main areas of disagreement.  I saw in the design the materials and finishes were masonry on the ground floor and weatherboard on the upper level.  This would contribute a lighter feel to the upper story together with it having 3 m side setbacks.

1. Also the upper storey was set back about 2 m behind the ground floor front wall of the study. The upper storey would have an appearance of recession and that could be seen from the model at the hearing. The skillion roof for the photovoltaic cells was set back 3 m from the front elevation so it would not be a dominant feature. It would appear as a lightweight fin well behind the front elevation. Also its pitch is the same as the adjoining houses so it picks up on that rhythm. Also by being set back the skillion roof allows the front elevation of the second storey of the proposal to be well below the eave level of No 5 Brown Street thus maintaining the topographic streetscape of houses stepping down the hill.

1. Having only a single driveway to the tandem carport the driveway does not dominate the front elevation.  The carport has a timber concertina gate that is also light in appearance so that the visual mass of the house will be in proportion to other two storey houses in the street or any other likely new two storey houses.

1. I do not see the need to set the second storey back further than proposed.  It is behind the front elevation of its two neighbours.  The ground floor has the same setback as the neighbours. 

2. The front garden is to have a hedge at the street boundary and no fence whereas most of the other houses do have a front fence.  Mr Dickson said he was happy that the hedge would present the same visual mass as the fences on the other houses, and being vegetation, it would have a softer and greener appearance than its neighbours that would make the proposed new house more recessive in the streetscape.

1. Overall I am in general agreement with the opinions of Mr Dickson and therefore I can see no reason sufficient for refusal of the proposal as now modified in the version F drawings.  The parties have agreed on draft conditions in Exhibits 4 and L, therefore the orders of the Court are:

2. The appeal is upheld.

3. Development consent is granted for the demolition of the existing house, and the proposed new house at No. 7 Brown Street, Bronte, as shown in drawings in Exhibits A, C, D & F being Job No. 0431 Drawing Nos. DA-01 to–04 all issue F by Geoform Design and basix Assessment No. 1154 by Assessor No. 20049, Landscape Plan No. LSK-05.1511-01 Issue B by “a & h” Landscape Architects and Hydraulics Plan Project No. 205-263 Drawing H-01 Revision A by Greenarrow Hydraulics all as amended by, and built in accordance with the conditions in Annexure ‘A’ hereto.

4. The exhibits are returned to the parties except Exhibits A, C, D, F, J, K, L, M, 2, 3, 4, and 5.

   ___________________

   K G Hoffman
   Commissioner of the Court

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