G K Morgan Investments P/L v Lane Cove C

[2005] NSWLEC 163

Land and Environment Court

of New South Wales

CITATION:

G K Morgan Investments P/L v Lane Cove C [2005] NSWLEC 163

PARTIES:

APPLICANT
G K Morgan Investments Pty Limited

RESPONDENT
Lane Cove Council

FILE NUMBER(S):

11085 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Alterations and additions to existing dwelling - subdivision into two lots - two storey detached dwelling - zone objections - character and heritage - setbacks - tree removal and landscaping.

LEGISLATION CITED:

Lane Cove Local Environmental Plan 1987
Lane Cove Residential Zones Development Control Plan
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

6 & 7/04/05

 
DATE OF JUDGMENT: 

04/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Cole, solicitor
of Abbott Tout

RESPONDENT
Mr S Griffiths, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

21 April 2005

11085 of 2004 G K Morgan Investments Pty Limited v Lane Cove Council

JUDGMENT

1 This appeal is against Lane Cove Council's deemed refusal of development application No D18/04 ("the proposal") involving the property known as 88 Northwood Road, Northwood. The site has a total area of 1347 sq m and has frontages to Northwood Road, Cliff Road and Eva Street.

2 More particularly the proposal comprises:

• Alterations and additions to the existing detached dwelling house ("the existing house")
• The subdivision of the site ("the site") into two Torrens title lots ("the subdivision")
• The construction of a new one and two-storey detached dwelling house on the resulting new lot ("the new house")

3 There are two major elements comprising the additions to the existing Federation period Queen Anne dwelling house: a two level extension at the rear; and a single level pavilion style extension at the side. The alterations involve the demolition of some internal fabric and internal rearrangements.

4 The subdivision will create a new lot 88 having an area of 777 sq m to accommodate the existing extended dwelling and a second new lot 88A having an area of 570 sq m to accommodate the new dwelling. Lot 88 will have frontages to Northwood Road and Cliff Road and lot 88A will have frontages to Cliff Road. and Eva Street.

5 The design of the proposed new house on lot 88A is to be of a more modern style having a steel frame and low-pitched roofs.

6 The locality exemplified by Northwood Road is residential with nearly all buildings being detached single or two-storey dwelling-houses on relatively large allotments with established gardens and generous front setbacks. Several larger homes have been converted to residential flats. Eva Street is different, has more of the character of a lane, having many rear frontages (of properties fronting Northwood Road) providing access to garages.

7 The site is zoned Residential 2(a2) under Lane Cove Local Environmental Plan 1987 ("the LEP") and in this zone dwelling houses and subdivision are permissible with development consent. Clause 9 (3) of the LEP provides in effect that consent shall not be granted unless the proposal is consistent with the objectives of the relevant zone.

8 The objective of the 2(a2) zone is:

To retain the existing residential amenity of detached single-family dwelling areas. New dwelling houses or extensions of existing dwelling houses will be permitted only were they would not be highly visible when viewed from the Lane Cove River or Parramatta River.

9 There was no suggestion that the proposal would be highly visible from the Lane Cove River or Parramatta River, although the question of the impacts of the proposal on existing residential amenity was one of the issues in the case.

10 Under the LEP the existing house is one of four separately identified houses together comprising a heritage item and referred to as B122 in Schedule 3. There are a number of other heritage items in the vicinity of the site.

11 Clause 18A of the LEP relevantly provides that consent is required for alterations to a heritage item. Also, sub cl (3) provides that:

When determining a development application required by this clause, the council must take into consideration the extent to which carrying out the proposed development would affect the heritage significance of the heritage item or heritage conservation area.

12 The site is not included within a conservation area under the LEP.

13 Clause 18E requires that:

The council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item or archaeological site, and on the setting, when determining an application for consent to carry out development on adjoining land.

14 Also applicable to the site is Council's Code and Development Application Checklist for Dwelling houses, Fences, Private Swimming Pools and Outbuildings. This code contains applicable standards relating to floor space ratio, height, solar access, energy efficiency, privacy and overlooking, building line, setbacks to side boundaries and landscaping.

15 There was no dispute that the two dwelling houses comfortably meet the maximum floor space ratio landscaped area and height controls. The respondent expressed no concerns in relation to solar access, energy efficiency, overshadowing or privacy. There are some setback non-compliances.

16 Also applicable is Council's Residential Zones Development Control Plan. Part 7 of the DCP sets a minimum lot size of 550 square metres and the proposed subdivision comfortably meets this requirement.

17 As a result of the notification of the application a total of 56 submissions were received by the council objecting to the proposal. These submissions are from residents of the surrounding area and the Lane Cove Historical Society, the Longueville Residents Progress Association and the National Trust.

18 Matters of concern raised in these submissions and reiterated by those residents who gave evidence when the hearing began on site include:

• The removal of a number of mature trees from the site including historic pear trees.
• Various non-compliances with Council's planning codes and controls.
• Traffic safety issues resulting from new garages with exits onto Cliff Road and Eva Street which streets comprise bus routes.
• The adverse effect on the heritage significance of the existing dwelling house and the locality generally.
• Overdevelopment of the site.
• The subdivision would comprise an inappropriate precedent.

19 Expert town planning evidence was given by Mr P Grech the Court appointed town planner. Expert heritage evidence was given by Ms S. Burke the Court appointed heritage consultant. Additional heritage evidence was given on behalf of the applicant by Mr B. McDonald and on behalf of the respondent by Mr M. Robinson.

20 The statement of issues identifies 12 separate issues a number of which have now been deleted. In essence the remaining issues comprise:

• Incompatibility with the existing dwelling house character of the locality
• Inconsistency with the objectives of the 2 (a 2) zone
• Excessive removal of existing trees from the site
• Adverse impact on the heritage significance of the existing dwelling on the site and its setting.
• Non-compliance with various setback requirements.
• Landscaping
• Matters raised by the objectors.

21 Having considered all of the evidence and having taken the view of the site and its environs and taking into account the proposed conditions of consent including those proffered by the applicant, the following are the relevant issues for the determination of the Court.

1. Whether the proposed alterations and additions to the existing house are, taking into account its heritage significance and its heritage setting, satisfactory.
2. Whether the proposed subdivision should be approved taking into account the existing subdivision pattern of the area and the applicable subdivision standard.
3. Whether the design of the proposed new dwelling house would be satisfactory particularly taking into account in character of the area and its relationship to heritage items.

22 Apart from these issues there were some concerns that the proposed new dwelling house would have adverse impacts on the adjoining property at 90 Northwood Road, particularly in relation to privacy, overshadowing and building bulk. However in this regard I accept the evidence of Mr Grech that these matters are not critical to the application noting also that they were not pressed by the respondent. Despite this I have some concern as to the southern presentation of the new dwelling house to the garden and pool area of No 90. A different somewhat lower and more sensitive design in terms of building bulk would be preferable.

23 There was considerable dispute as to what the applicable heritage listing associated with the existing house on the site actually means, in terms of clause 18A(3) of the LEP

24 A heritage item includes a building, work, relic, tree or place of heritage significance described in Schedule 3 and shown on the heritage map. Schedule 3 includes Nos, 88, 90, 94 and 96 Northwood Road grouped together with the common reference: B122 (“the group”). This arrangement is reflected on the heritage map.

25 It seems to me that the intention of the LEP is to protect these four properties as a group. It is plain that each property has its own heritage significance but considered together they have an overall significance greater than the individual significance of each of them. The council’s Heritage Study relevant extracts of which are contained in Miss Burke’s report by referring to the four properties together and describing the individual houses and their setting separately, in my view supports this approach.

26 Clause 18A(3) of the LEP relevantly requires that when determining a development application, consideration must be given of the extent to which the proposed development under consideration would affect the heritage significance of the heritage item. I am satisfied that for the purposes of this clause the four properties together comprise the heritage item, but in the end little turns on this.

27 The Heritage Study describes the four properties comprising the group as follows:

Group of single-storey bungalows set well back from the road.
The houses of various dates form a homogenous group in scale and character.
No. 88: relatively intact Federation brick bungalow on corner block with remnant garden layout and planting. Of architectural and cultural significance because both building and garden are intact.
Nos. 96 & 94: single-storey Californian bungalow style homes with features typical of style. Remnant planting.
No. 90: single storey bungalow with decorative timber to front facade enclosed veranda and remnant planting.

28 In dealing with the consequences of the proposal in terms of the heritage significance of the group and other nearby heritage items and also in terms of the character of the area generally it is necessary to consider both the alterations and additions to the existing house and the proposed new house. To do this it is necessary to consider these in terms of how they will be seen from the public domain, being Northwood Road, Cliff Road and Eva Street and how they relate to one another.

29 Dealing firstly with the consequences of the alterations and additions to the existing house and their effect on its heritage significance, one needs to consider three matters: loss of original fabric; the architectural style of the extension; and the form of the additions relative to the form of the existing building.

30 Whilst Miss Burke was concerned at the loss of original fabric especially taking into account from the degree of intactness of the house, I accept that the significant majority of this is to be retained. I also accept the evidence of Mr McDonald that those elements of the fabric to be removed are of low/moderate significance and their loss will not be critical.

31 As for the architectural style of the extension I also agree with Mr McDonald that the proposed building and roof form including dormers and gables is appropriate, these being traditional forms utilising traditional materials that will compliment the existing building whilst at the same time presenting as a contemporary addition. Despite this I agree with Mr Robinson's observation that the dormers are too large.

32 I accept that the proposed pavilion element of the extension on the south side is entirely appropriate and whilst it will be seen from Northwood Road, it would comprise an appropriate extension in terms of form bulk and scale.

33 Because the two level extension will probably be little seen from Northwood Road, even disregarding existing screening vegetation this is also not a matter of concern. However, in terms of its presentation when viewed from Cliff Road generally I have been persuaded that, relative to the heritage significance of the existing house, the rear extension will have an excessive bulk and scale and is therefore inappropriate.

34 Miss Burke and Mr Robinson had similar opinions in this regard commenting that the extension would be too high and too bulky in relation to the original dwelling and would dominate it. More particularly Miss Burke believed that the shape and volume of the extension would not be sympathetic and should have a more modest single-storey form set closer to ground level. This is because the design fails to respect the traditional descending order of scale of traditional cottage roofs and their extensions. This becomes more important with the removal of footpath vegetation (for access to the garage) thus making the extension more obvious.

35 Mr McDonald argued that having a constant gutter line between the house and the extension was an important design feature. I disagree and accept that the descending order of scale approach expressed by Miss Burke should instead be applied. A reduced scale extension with a stepping down of the floor level, following the topography of the site would contribute to an appropriately subsubservient extension. Instead, by maintaining the existing gutter line and disregarding the slope of the land towards the rear, this results in the wall of the extension as it presents to Cliff Road being taller than that of the existing dwelling. Also, the width of the extension, which generates the roof structure and size, together with the width and form of the dormers results in the large roof form, which accommodates the upstairs rooms. The roof will be higher than most of ridge of the existing dwelling and given its ridge configuration the roof will appear much longer. This leads me to conclude that the height and bulk of the extension relative to that of the existing house are excessive and will, by being dominant adversely affect its heritage significance.

36 This is not to say that the existing house cannot be extended. Other heritage listed houses including those in this group have been extended. However, this site, having an additional (side) frontage means that any extension is likely to be obvious from the street and greater care is required in its design.

37 As I have already indicated the presentation of the pavilion and the proposed alterations and additions to Northwood Street, would otherwise have been satisfactory. This is especially so, taking into account the preservation of the front garden areas and the building set back from Northwood Street. In this context it would have no direct impact on the heritage significance of the group although more generally the impact is adverse.

38 Therefore, for reasons of heritage impact, the extension to the existing dwelling at the rear in its presently proposed form is unsatisfactory. It follows that the character of the area, which has a considerable heritage influence will also be adversely affected.

39 More generally Miss Burke expressed concerns that when considered together, the proposed extension and the proposed new house would result in an almost continuous building form along Cliff Street. An examination of Exhibit B, which shows the two houses together on the site, reveals this not to be so, with more than half of the road frontage proposed to remain undeveloped.

40 I nevertheless agree that the separation between the extended existing dwelling and the new house would be inadequate. Whilst I accept that the proposed transplanting of palm trees in the separation space will provide a perception of separation, I accept that this is not sufficient. This concern is reinforced by my agreement with Miss Burke that the significant reduction (down to 3 metres) of the rear curtilage would have an adverse effect on the sense of space in rear yards which is part of the character of the houses in the group. It is also a matter of concern in relation to the utility of this space as a backyard. Conversely, I do not accept that the entire present backyard needs to be retained.

41 As for the proposed new house Miss Burke was concerned that this proposed house failed to respond to the design cues presented by the surrounding development. Mr McDonald disagreed explaining that its contemporary style, non-assertive, simple lines and proportions were appropriate so as to avoid competition with the existing house. It is to be a relatively small home using recessive to dark colours, which will result in the house blending into its landscape setting.

42 In principle I find the proposed house to be acceptable especially considering its position on its site, the existing and proposed landscaping and the nature of development opposite it in Cliff Road and Eva Street. Also, taking into account that the site is not included in a conservation area but bearing in mind its heritage character I agree with Mr McDonald and would not have refused the proposed house because of its architectural style or scale. I nevertheless recognise that the residents would seem to prefer a more conventional house design and a different design might have reduced the impact on No. 90.

43 In relation to the proposed subdivision I firstly note that the two proposed lots comfortably comply with the standard in the DCP. However it was argued that the subdivision was not consistent with the historic subdivision pattern in the locality. The plans showing the existing subdivision pattern in the locality reveal a considerable variation in terms of lot arrangements, shapes and sizes. Despite this the lots in the block bounded by Northwood Road, Cliff Road, Eva Street and Point Road, including the site are all essentially rectangular with their main frontage to Northwood Road and a rear frontage to Eva Street. The proposed subdivision will change this pattern. However, in my view this change will result in a subdivision pattern similar to the subdivision pattern in Cliff Road opposite the site.

44 Given the particular circumstances of this lot, including having three frontages and being larger than the other lots in the block together with the fact that other subdivisions have taken place in this area, I do not accept that the subdivision is, per se, problematical nor would it establish an undesirable precedent.

45 If it can be shown on that the subdivision is capable of providing for an appropriate form of development then it may be able to be approved. However because of the problems associated with the extension to the existing house and until such time as these problems are resolved the subdivision should not be approved.

46 Finally, the argued ambiguity in the objective of the zone, which is to retain the existing residential amenity of detached single-family dwelling areas resulted in contrary submissions from the advocates. One view is that any development comprising detached single-family dwelling houses would meet the objective. The opposing view emphasises the present level of residential amenity and any reduction of this is unacceptable.

47 I expect that the answer lies somewhere between these two interpretations. I see no reason why new dwelling houses cannot be introduced into this area while maintaining an appropriate level of residential amenity. It is clear that the existing amenity would be changed by the proposal however whilst I agree with Mr Grech that in terms of density this will not occur in an unacceptable way, in terms of character, the change will be adverse.

48 For the reasons given above it is the decision of the Court that::

1. The appeal is dismissed.
2. Development application No D18/04 involving the property at 88 Northwood Road, Northwood for aterations and additions to the existing detached dwelling house, the subdivision of the site into two Torrens title lots and the construction of a new detached dwelling house is determined by the refusal of development consent.

3. Exhibits C and D are retained.

_________________________
T A Bly
Commissioner of the Court
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