Gordon Highlands Pty Ltd v Byron Shire Council

Case •

[2014] NSWLEC 1208

•

07 October 2014

Land and Environment Court


New South Wales

Medium Neutral Citation: Gordon Highlands Pty Ltd v Byron Shire Council [2014] NSWLEC 1208
Hearing dates:11 - 12 September, 2014
Decision date: 07 October 2014
Jurisdiction:Class 1
Before: O'Neill C
Decision:

1. The appeals are dismissed.

2. Development Application No. 10.2013.570.1 for the demolition of existing structures and construction of a two storey, residential and commercial building, including 8 dwellings, 3 shops and basement car parking at 9 Station Street, Bangalow, is refused. DA10.2014.4.1 for the removal of two street trees is refused.

3. The exhibits, other than exhibit 3, are returned.

Catchwords: DEVELOPMENT APPLICATION: mixed use development; heritage conservation area; whether the proposal is consistent and compatible with the existing and future character of the streetscape; density; height; bulk and scale.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290
Helou v Strathfield Municipal Council (2006) 144 LGERA 322
Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121
Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category:Principal judgment
Parties: Gordon Highlands Pty Ltd (Applicant)
Byron Shire Council (Respondent)
Representation: Mr G. Green (Applicant)
Mr A. Seton (Respondent)
Pikes and Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)
File Number(s):10216 and 10284 of 2014

Judgment

  1. COMMISSIONER: These are two appeals, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979. The first appeal (10216 of 2014), is against the refusal of Development Application No. 10.2013.570.1, for the demolition of existing structures on the site and construction of a two storey, residential and commercial building, including 8 dwellings, 3 shops and basement car parking for 25 cars (the proposal) at 9 Station Street, Bangalow (the site), by Byron Shire Council (the Council).

  1. The second appeal (10284 of 2014), is against Council's refusal of Development Application No. 10.2014.4.1, for the removal of two street trees on Council's land, between the site and Station Street. The Council submits that if the first appeal is upheld, then no contentions are pressed in the second appeal.

  1. The first appeal was subject to mandatory conciliation on 16 June 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 30 June 2014, pursuant to s 34(4) of the LEC Act. The proposal has been amended following the conciliation conference and leave granted by the Court for the applicant to rely on the amended proposal. The plans were further amended during the hearing and leave was unopposed and granted by the Court for the applicant to rely on the further amended plans (exhibit J).

Issues

  1. The Council's contentions in the matter can be summarised as:

  • The proposal is not consistent with the design quality principles in the State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65);
  • The proposal is prohibited under the provisions of Byron Local Environment Plan 2014 (LEP 2014) and therefore the proposal is inconsistent with the desired future character of the locality;
  • The proposed demolition of the existing dwelling will have an adverse impact on the heritage values of the heritage conservation area;
  • The residential density does not comply with the saved planning controls, the height does not comply with the maximum height development standard and the bulk and scale of the proposal is excessive and likely to have an adverse impact on the built environment of the streetscape and locality;
  • The proposal is inconsistent with the existing and future character of the Bangalow Heritage Precinct/Bangalow Conservation Area;
  • The proposed basement carpark accessed from Station Lane results in exacerbating the existing conflict between pedestrians and vehicles and the proposed excavation for the basement car park is excessive.

The site and its context

  1. The site is comprised of two adjoining properties fronting Station Street, consisting of three allotments (as the northern property is divided into two allotments) with a total site area of 1123sqm. The northern property (Lot 1 DP 123326 and Lot 334 DP 755695) contains a large shed on the northern side towards the rear, and the southern property (Lot B DP 327228) contains a dwelling close to the Station Street front boundary.

  1. The site is at the northern end of Station Street, on the eastern side, close to a vehicular entry to the Bangalow Showgrounds from Station Street. To the rear of the site is an unmade section of Station Lane. There is a gradual fall across the site from north-west to south-east (site survey, exhibit J).

  1. There is a Scout Hall and Gate House, adjoining the site, to the north and the A&I Hall is on the northern side of the entry to the Bangalow Showgrounds, to the north-west of the site, as Station Street turns to the west at the Bangalow Showground entry, before it meets the railway corridor.

  1. The railway station was at the northern end of Station Street, however the railway has been decommissioned.

  1. Bangalow Public School is on the eastern side of Station Lane, on a site bounded by Station Lane, Byron Street to the south, Market Street to the west and the Bangalow Showgrounds to the north.

  1. The section of Byron Street between the Granuaille Road intersection and the school is the main street of Bangalow and it is steeply sloping, with high quality public and commercial buildings grouped on both sides, forming a picturesque, early 20th century, village town centre.

The proposal

  1. The proposal is to demolish the existing dwelling and shed on the site and construct a two storey mixed use development over basement parking for 25 cars.

  1. The proposal consists of the following (exhibit J):

  • Basement: 8 commercial visitor car spaces; 3 staff car spaces; 2 residential visitor car spaces; 5 residential car spaces and 6 tandem residential car spaces; 1 disabled visitor car space; lift access; refuse store and vehicular ramp access from Station Lane;
  • Ground Level: three shops fronting Station Street; two 1 bed units (units 1 and 3); and one 2 bed unit (unit 2);
  • First Floor: three 1 bedroom units (units 5, 6 and 7); one 1 bed + study (unit 8); and one 2 bedroom unit (unit 4).

  1. The flat section of the roof of the proposal, following the amendments made during the hearing, is at RL57.63 (exhibit J DA01 Rev F).

Planning Framework

  1. SEPP 65 applies to development being the erection of a new residential flat building, at cl 4(1)(a). A residential flat building is defined at cl 3, as follows:

residential flat building means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops)

  1. Pursuant to the Byron Local Environment Plan 1988 (LEP 1988) the site is zoned 3A Business and the proposal is permissible with consent, as the residential flat building is physically attached to the commercial component of the proposal. The relevant objectives of the zone, at cl 9, are:

(a) to encourage the development and expansion of business activities which will contribute to economic growth and employment opportunities within the Shire of Byron,
(b) to facilitate the establishment of retail, commercial, tourist and professional services to meet the needs of the community and which are compatible within the surrounding urban environment,
(c) to permit non-commercial development within the zone where such development is compatible with the commercial character of the locality,
(e) to ensure there is adequate provision for car parking facilities within the vicinity of the zone, and
(f) to minimise conflicts between pedestrians and vehicular movement systems within the vicinity of the zone.

  1. Before determining a development application, the Council is to have regard to the 'Small Towns and Villages Settlement Strategies', at cl 2A(2)(e) of LEP 1988.

  1. Clause 40 of LEP 1988, 'Height', relevantly includes the following:

(1) The objectives of this clause are as follows:
(a) to achieve building design that does not exceed a specified maximum height from its existing ground level to finished roof or parapet,
(b) to ensure that the height and scale of development is appropriate to its location, surrounding development and the environmental characteristics of the land.
(2) The council must not consent to the erection of any building:
(a) on land within Zone No 3 (a), if:
(i) the floor of the topmost floor level of the building exceeds 7.5 metres above the existing ground level, or
(ii) the vertical distance between the topmost part of the building and the existing ground level below exceeds 11.5 metres

  1. Schedule 2 of LEP 1988 includes 'Buildings within Heritage Precinct on map'. Heritage precinct is defined in LEP 1988 as land contained within broken heavy black edging and marked "heritage precinct" on the map (being the series of maps marked "Byron Local Environmental Plan 1988"). Item of environmental heritage is defined as, 'a building, work, relic or place of historic, scientific, cultural, social, architectural, archaeological, natural or aesthetic significance for the Shire of Byron, as identified in Schedule 2 or within a heritage precinct'. The site is located within the Bangalow Heritage Precinct.

  1. The applicant lodged the development application for the proposal on 25 November 2013. LEP 2014 commenced on 21 July 2014. LEP 2014 contains a savings provision, at cl 1.8A, as follows:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

  1. The site is zoned B2 Local Centre pursuant to LEP 2014. Residential accommodation (other than shop top housing) is prohibited in the B2 zone. The relevant objectives of the B2 zone are:

· To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.
· To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises.

  1. The relevant aims of LEP 2014, at cl 1.2, are:

(d) to promote and coordinate the orderly and economic use and development of land,
(e) to build and sustain community resilience by encouraging a diversity of housing choice and affordable housing in appropriate localities,
j) to protect the cultural heritage of Byron, including the conservation of built heritage and Aboriginal heritage

  1. The maximum height for all sites in Bangalow is 9m (Height of Buildings Map Sheet HOB_003 LEP 2014). The objectives for the height of buildings, at cl 4.3(1) of LEP 2014, are:

(a) to achieve building design that does not exceed a specified maximum height from its existing ground level to finished roof or parapet,
(b) to ensure the height of buildings complements the streetscape and character of the area in which the buildings are located,
(c) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development.

  1. The maximum floor space ratio for the site is 1:1 (FSR Map Sheet HOB_003 LEP 2014) and the parties agreed that the proposal complies with the maximum FSR development standard, as it has an FSR of 0.84:1 (exhibit 8, p 8).

  1. The site is located within the Bangalow heritage conservation area (Bangalow HCA) (Heritage Map - Sheet HER_003CBB of LEP 2014) and in the vicinity of the following heritage items (Schedule 5 LEP 2014):

  • Showground, Station Street, no. I038
  • A&I Hall, 3 Station Street, no. I039
  • Masonic Hall, 16 Station Street, no. I040
  • Uniting Church, 17 Station Street, no. I041

  1. The relevant objectives for heritage conservation, at cl 5.10(1) of LEP 2014 are:

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

  1. The consent authority, must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area concerned, at sub-cl 5.10(4).

  1. Chapter 1: Part C of Byron Shire Development Control Plan 2010 (DCP 2010) applies to all development relating to the erection of residential development in the Byron Shire, including residential flat buildings.

  1. The objective for setbacks in DCP 2010 at C2.6 is to achieve varied and interesting streetscapes, good orientation of residential development and to create private open space and courtyards.

  1. The relevant objectives for extent of earthworks, at C2.7, is to minimise environmental impact, blend new development into the landscape and to minimise the disturbance to the natural landform. Excavation of earthworks is to be limited at a depth of 1m.

  1. The objective for landscaped area, at C7.5, is to provide attractive landscapes that reinforce the function of the street, enhance the amenity of dwellings and allow preservation of significant vegetation. Landscaping is to complement existing streetscapes and the urban landscape. A minimum of 75% of the total common landscaped area of the site is to be of an absorbent finish.

  1. The relevant objective of on-site parking, at C7.6, is to provide sufficient convenient parking for residents and visitors and maintain the amenity of adjoining properties and the efficiency of the road network by providing for car-parking on-site.

  1. Chapter 1: Part D of DCP 2010 applies to commercial development. The objectives for scale and appearance at D2.2, includes to reinforce the role and function of Business Centres and to ensure that development is compatible with the surrounding built form and to ensure that the design of developments complements and enhances the public realm within existing business precincts. The performance criteria includes that the scale and appearance of development within commercial and retail areas must be compatible with adjoining and nearby development and must reflect and complement the character of the centre. Development in rural centres must be consistent with the village atmosphere. The prescriptive measures for scale and appearance includes, for the height of development in the 3(a) zone, that the design controls in DCP 2010 are the major determinates of scale and character, however, Council will give consideration to the overall scale and character of the centre within which the site is located. The design of new buildings must reflect and enhance the existing character of the business precinct.

  1. For mixed commercial and residential development within the 3(a) zone at D3 of DCP 2010, the objective is to provide affordable and mixed residential accommodation close to transport, employment and services. The density of development is to be in keeping with the character of the surrounding area and provide a mix of dwelling sizes and the commercial viability of the centre must not be affected in the short or long term by the provision of a residential rather than a commercial component in the development. The prescriptive measures includes that a development must not have a density greater than 1 dwelling per 150sqm and a minimum of 25% of the floor area, excluding parking, is to be set aside for commercial and retail purposes.

  1. Chapter 12 of DCP 2010 'Bangalow', includes at 2.2 the objective of maintaining and enhancing the unique character and amenity of Bangalow as a rural township and to encourage new development to complement that special character and to establish a variety of residential development forms and densities.

  1. Section 4 'Heritage' includes the following at 4.1 'Character':

The recognition of Bangalow as an historic village of strong individual character has strengthened considerably in recent years and reinforcing the continuity with the past is a major aim of the DCP chapter. Bangalow's character derives from the following:
a) For a small rural township there is an unusual, yet impressive scale to the commercial buildings. Most of the commercial buildings date from around the First World War, are of solid brick constructions and have ornate parapets exhibiting later 'Federation' influences. Although the verandah's have gone, there remains a strong sense of originality and compatibility of design.
c) There is generally an absence of inappropriate "intrusive" buildings, either in the commercial or residential areas such that there remains a pleasing architectural harmony about the buildings in scale, form, materials and colour.

  1. DCP 2010 extended the heritage area from the commercial buildings at the top end of Byron Street and the eastern side of Station Street (including the site) to include a greater length of Byron Street and the western side of Station Street (Map B).

  1. The Byron Shire Development Control Plan 2014 (DCP 2014) came into force on 21 July, 2014. DCP 2014 contains a savings provision, at A8, as follows:

Pursuant to clause1.8A of Byron LEP 2014, any development application made in relation to land to which Byron LEP 2014 applies, prior to the commencement of Byron LEP 2014 that has not been finally determined before the commencement of Byron LEP 2014, will still be assessed Byron LEP 1988 For these applications Byron Shire DCP 2010 and the Tree Preservation Order will apply.

  1. Section B9.4 of DCP 2014 includes the objectives, performance criteria and prescriptive measures for residential flat buildings. For landscaping, at B9.4.1, the common landscaped area of the site must not be less than the total of the areas required for each dwelling in Table B9.1, which is, based on the floor area of the apartment, 6 apartments require 70sqm of common landscaping each and 2 require 90sqm of landscaping each, total of 600sqm of the site area. A minimum of 75% of the total common landscaped area of the site must consist of deep soil areas. Section B9.7 of DCP 2014 includes the objectives, performance criteria and prescriptive measures for commercial and retail development and requires large retail or commercial development to provide a minimum of 10% of the site as landscaping.

  1. Chapter C1 of DCP 2014 'Non-indigenous heritage' includes as its purpose to set out controls and guidelines that complement LEP 2014 in relation to development in or in the vicinity of heritage items and heritage conservation areas. The aims of the chapter are to guide development, to encourage a high standard of well-designed heritage-related development that is sympathetic to and compatible with the cultural heritage of the Byron Shire and to ensure that new development respects its heritage context in terms of form, scale, character, bulk, orientation, setback, fabric, colours and textures so as to not adversely affect the significance of heritage items and components of heritage conservation areas and their setting.

  1. C1.2.2 'Assessment Requirements' for non-indigenous heritage include that demolition of components that contribute to the character of a heritage conservation area is contrary to the intent of the heritage listing.

  1. C1.3 'Conservation Guidelines and Requirements - Heritage Items, Heritage Conservation Areas and Development in their Vicinity' includes at C1.3.1 the objectives of promoting development that complements the existing heritage character and amenity of the area, maintaining and enhancing the heritage character of the streetscape, ensuring new development respects the established patterns and visual setting in the streetscape including setbacks, siting, landscape settings, car parking and fencing and to retain and reflect the character of buildings frontage design in the streetscape. The performance criteria includes retaining the side and front setbacks typical of the spacing of existing buildings from each other and from the street, in the streetscape, retaining the landscape character and new development must respect and complement the existing heritage character of the streetscape.

  1. C1.5 'Special Guidelines - Development in the Vicinity of a Heritage Item' includes at C1.5.1 the objectives of ensuring that new development achieves a sympathetic relationship with nearby heritage items in terms of scale, massing, character, setback, orientation, materials, and detailing and to ensure that new development is carefully sited to retain the integrity and setting of the heritage item.

  1. C1.6 'Special Guidelines - Heritage Conservation Areas' includes at C1.6.1 that generous setbacks and landscaping consistent with the existing pattern of development must be maintained, to conserve the space between buildings that contribute to the character of conservation areas.

  1. C1.6.7 'Bangalow Conservation Area' includes the following statement of significance:

A rare, largely intact early 20th century village built in a picturesque setting of green hills and subtropical vegetation with a main street of high-quality public and commercial buildings grouped on both sides and an unusually steep sloping street. The village area has a high concentration of quality dwellings, public buildings, streets, back lanes, street trees and landscaping, which taken together illustrate an identifiable pattern of domestic, industrial and commercial settlement in Bangalow by early pioneering settlers, and a pattern of development of civic infrastructure.

  1. C1.6.9 'New Development in Heritage Conservation Areas' includes the objectives of ensuring that the siting of new development retains the integrity of the heritage conservation area, that it achieves a sympathetic relationship within the area and that it respects the established streetscape and the patterns of development, including setbacks, siting, landscape setting, car parking, height, dominant ridgelines and building envelopes. The performance criteria requires new development to complement and not compete with the elements that contribute to the setting, uniqueness and heritage significance of the area.

  1. E2.3.2 'Development within B2 Local Centre Zone' for Bangalow, includes the following performance criteria for parapets/roofs:

A number of buildings, notably most of the banks, post office and adjoining house, and houses in Station Street have hipped or hipped and gabled roofs in galvanised iron, other than for one bank in tiles. Roof pitches are generally in the 25-35 degree range.
New roofs should fall within this range and should be compatible with neighbouring roofs.

Public submissions

  1. A number of objectors to the proposal provided evidence at the commencement of the hearing, on site. Their objections to the proposal can be summarised as:

  • the proposal will increase the traffic on Station Lane which will conflict with children crossing the laneway to and from the school;
  • the bulk and scale of the proposal is an overdevelopment and unacceptable in Station Street;
  • the proposal is incompatible and out of context and will detract from the sensitive heritage precinct;
  • the front setback should be increased;
  • there is insufficient soft landscaping provided by the proposal;
  • the excavation required by the proposal is excessive;
  • the materials of the proposal are inappropriate.

Expert evidence

  1. Expert evidence was provided by Mr Robert Staas (heritage), Ms Alison McCabe (planning) and Mr John Coady (traffic) for the applicant and Mr Graham Brooks (heritage), Mr Steven Layman (planning) and Mr Craig McLaren (traffic) for the Council.

Consideration

  1. SEPP 65 does not apply to the proposal as it does not meet the cl 3 definition of residential flat building, required by cl 4(1)(a), of a building that comprises 3 or more storeys. The basement of the proposal, for car parking and storage, is excluded from contributing to the number of storeys as it protrudes less than 1.2m above ground level (on the low side of the development, Shop 3 Ground Floor level is RL 48.8 and existing ground level in the south-eastern corner of Shop 3 is approximately RL 47.8 and Unit 3 Ground Floor level is RL 48.6 and existing ground level on the southern side is approximately RL 47.9).

  1. Council condends that the proposal should be refused because it seeks consent for development that is prohibited on land zoned B2 Local Centre, pursuant to LEP 2014, being residential accommodation, which makes the proposed development inconsistent and incompatible with the future character of the area in terms of permissible land uses.

  1. Shop-top housing is permissible in the B2 zone (Land Use Table LEP 2014), however the parties agreed that following Justice Sheahan's decision in Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 (Hrsto) (where His Honour held at [56] that to qualify as shop-top housing, the relevant residential part of the building must be truly above the relevant retail or commercial part of the building) the proposal does not meet the definition of shop-top housing in LEP 2014, because Units 1 to 3 on the ground floor of the proposal are located behind, and not above, the commercial part of the proposal.

  1. The savings provision in cl 1.8A of LEP 2014 sets aside any operative prohibition to the proposal in LEP 2014. However, consistently with Justice Lloyd's decision in Blackmore Design Group Pty Ltd v North Sydney Council 118 LGERA 290 (Blackmore), it is necessary to consider whether the proposal is consistent with the aims and objectives LEP 2014 and the objectives of the B2 zone. His Honour relevantly stated in Blackmore at [30] - [35], the following:

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):
Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]):
...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.

  1. According to Ms McCabe, the proposal is not antipathetic to the B2 zone objectives, as it supports a range of uses that are anticipated in the zone. In her view, the proposed use is appropriate to the desired future character as it provides business uses and has the fundamental character of shop top housing. Mr Layman is of the view that the proposal is antipathetic to the objectives of the B2 zone, because it does not meet fourth objective, 'to encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises', as the residential part of the development is not 'above' the commercial part of the development, and this makes the proposal antipathetic to the B2 zone objectives, because it fails to strike the right balance between residential/tourist/visitor accommodation and commercial uses, which are the primary purpose of the zone.

  1. While I understand Mr Layman's position, that the residential component constitutes a much greater proportion of the built form that the commercial component and that this is not the balance envisaged by the objectives for a local centre, the test laid out in Blackmore is simply whether the proposal is consistent with the later instrument and I am satisfied that it is. The proposal would provide residential accommodation in association with a commercial use that would serve the needs of people in the local area. There is nothing in the proposal that is inherently adverse or antipathetic to the local centre.

  1. Although DCP 2010 applies to the proposal, by virtue of the savings clause at A8, DCP 2014 is also a relevant consideration (Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 at [16]).

The existing cottage

  1. The heritage experts agreed that the existing cottage is a modest dwelling dating from the early 20th century (shortly prior to its appearance in a 1910 photograph according to exhibit B, 'the Ainsworth report') and the main period of historical development in Bangalow is between 1890 and 1940. They agreed that the dwelling has been highly modified by later alterations and additions, including internal modifications, the removal of chimneys, the removal of the front verandah, a rear addition and recladding of the roof.

  1. The heritage experts disagreed on whether the existing cottage on the site is worthy of being identified as contributory to the heritage significance of the Bangalow HCA and whether it should be retained or not.

  1. According to Mr Brooks, the modest houses in Bangalow have been ignored in previous studies carried out to establish the heritage items and contributory items to the Bangalow HCA. In his view, the style and period of the dwelling is characteristic of the rural township and it does contribute to heritage significance of the Bangalow HCA and should be retained. Mr Brooks is critical of the Statement of Heritage Impact prepared for the development application, the Ainsworth report, as it contributes no independent analysis, it is inadequate in terms of its analysis of the existing dwelling and it comes to the wrong conclusion, in his view.

  1. According to Mr Staas, the existing cottage makes a minimal contribution to the heritage significance of the Bangalow HCA which would not reach the threshold to warrant it being identified as contributory to the heritage significance of the Bangalow HCA. The cottage, in Mr Staas' view, has been compromised by later alterations and additions and despite it being a building from the period of primary settlement, it makes little contribution in heritage terms to the character of the streetscape and the removal of the cottage will not have any substantial adverse impact on heritage values of area.

  1. In Ms McCabe's view, the Council has had ample opportunities, as new DCPs have been prepared, to review and revise the list of contributory items to the Bangalow HCA identified in the 1991 Map B (included in DCP 2010) and to include the existing dwelling as a contributory item and it has not done so.

  1. The Council submits that the planning principle in Helou v Strathfield Municipal Council (2006) 144 LGERA 322 (Helou planning principle) at [46] is relevant to my consideration of the contribution made by the cottage to the heritage values of the Bangalow HCA.

  1. The Community Based Heritage Study 2007 prepared by Dr Donald Ellsmore in conjunction with the Council (exhibit H, 'Ellsmore report') focuses on the identification of potential heritage items and identifies 5 conservation areas, but it was clearly beyond the brief for this study to identify contributory/neutral/intrusive elements within those conservation areas, which is evident from the 1.1 Aims of the Ellsmore report, to 'assess and recommend places for inclusion on the schedule of places of local heritage significance in the Byron Shire Local Environment Plan'. The Ellsmore report's executive summary states, that many of the places were designated for 'recording only' on the basis of there being insufficient evidence to substantiate local heritage significance and in Bangalow, identified as Area 4, the four buildings identified as recommended for listing are included in Schedule 5 of LEP 2014 and the places recommended for recording are 13 Station Street and the RSL Hall in Station Street.

  1. It appears that Council's approach has been to list the Bangalow HCA as an item of heritage in LEP 1988 with the intention of protecting it as a whole, and notwithstanding the inclusion of Map B in DCP 2010, to otherwise not single out contributory items, but to provide a generic set of rules for managing change within the Bangalow HCA. Map B, which originally dates from 1991, is a not to scale, figure-ground sketch which does not include addresses or descriptions, which is not accurate in terms of the precise positions of the tiny rectangles that represent buildings and the buildings shown solid are identified broadly as 'contributing to the character of the town', which includes a number of buildings in Station Street, including other cottages. The existing cottage on the site is not shown as contributing to the character of the town on Map B.

  1. Identifying contributory, neutral and intrusive elements to a heritage conservation area is a role best suited to Council's strategic planning team and in conjunction with an independent specialist consultant to Council. It requires expertise, research, analysis, reflection, the preparation of reports and importantly, the engagement of the community and elected Council. It is fundamentally not an appropriate role for the Court to identify a building or element as being contributory to a heritage conservation area, without the necessary and compelling evidence before it to be able to make such a finding.

  1. In this matter, the research and analysis following on from the Ellsmore report's identification of the Bangalow Township Conservation Area appears not to have been undertaken and consequently, I do not have sufficient evidence before me to answer the second question of the Helou planning principle, 'What contribution does the existing building make to the significance of the conservation area?' I accept the agreement of the heritage experts that the existing cottage dates from the key period of historical development in Bangalow, although it has been highly modified by later alterations and additions and that it makes some contribution to the heritage significance of the Bangalow HCA, although whether or not that contribution is sufficient to reach a threshold to make it contributory and worthy of retention is not agreed by the heritage experts.

  1. The Ainsworth report, having found that the existing cottage has local historic significance, concludes that the cottage does not contribute to the significance of the Bangalow HCA (exhibit B, section 6.2.1) although there is no comparative analysis and no reasons are given for this conclusion.

  1. The existing cottage is not listed as a heritage item and it is not identified by Map B in DCP 2010 as 'contributing to the character of the town'. There is insufficient evidence before me to make a finding contrary to Council's long held position regarding this cottage not being of heritage value other than being located within the Bangalow HCA and therefore I accept Mr Staas' evidence that the demolition of the cottage is acceptable.

  1. The applicant submits that a condition requiring the removal of the cottage to another site, in consultation with Council, would be an alternative that the applicant would be willing to accept. In Mr Staas' view, this would be an acceptable outcome and in Mr Brooks' view, a building fundamentally relates to 'place', however he conceded that it is a preferable option to demolition.

  1. Any contribution the cottage may make to the Bangalow HCA is inextricably tied to its site and its relationship with the streetscape and it would be considerably eroded by relocating the cottage elsewhere, so it should not be imposed on the basis that such a solution would preserve any contribution the cottage may make or significance it may have. Nevertheless, there is nothing objectionable about relocating a cottage that would otherwise be demolished if the applicant chooses to do so.

Bulk and scale of the proposal and its compatibility with the existing and future character of the Bangalow HCA

  1. The experts agreed that a two storey form on the site is anticipated by the controls and I accept their agreement.

  1. In Mr Layman's view, the density of the proposal is excessive, which is demonstrated by its non-compliance with the density control for multi-dwellings in DCP 2010, as the 8 units proposed equates to 1 dwelling per 140sqm and not 1 dwelling per 150sqm and the commercial area equates to 23% of the total floor space and not the minimum 25%, by the relevant prescriptive measures at D3 of DCP 2010. The experts agreed that the proposal complies with the FSR development standard of 1:1 in LEP 2014, with an FSR of 0.84:1. The applicant submits that the density control for number of dwellings does not have a minimum or maximum number of bedrooms per dwelling and the proposal has more dwellings as they are 1 and 2 bedroom units.

  1. According to Mr Brooks, the roof form of the proposal is excessively complicated and consists of a large, flat area with a hipped roof form around the edges. The roof design, in his view, is an unsuccessful attempt to disguise the bulk and scale of the proposal and does not relate to the heritage character of Station Street. According to Mr Layman, the roof, which does not comply with the 9m maximum height limit in LEP 2014, is a complex shape and a bulky design, which is not architecturally consistent with the traditional hipped roof forms in Station Street and the rear portion of the building could be lowered by 900mm to ameliorate some of the bulk of the overall form of the proposal. In Mr Staas' view, the proposal's roof form is compatible with the pitched roofs in Station Street.

  1. Mr Brooks noted that there is a dramatic shift in character in Station Street, when compared to Byron Street, as Station Street consists of buildings in a landscaped setting, whereas in Byron Street the buildings are more dominant and form a street wall along the main street. In his view, the proposal's amalgamation of lots will result in a single mass of two storeys and changes to the subdivision pattern within a conservation area are generally regarded as generating an adverse effect on the scale and character of the locality. While he could support the absolute height of the proposal, it is the height over such a huge building with a predominately flat roof which results in a bulk and scale that detracts from the character of the streetscape.

  1. According to Mr Staas the proposal is a transitional building between the A&I Hall and the cottages in Station Street and its mass will be barely perceivable, as the design has been carefully considered to break up the form and height of the proposal. Station Street consists of an eclectic streetscape of buildings of varying heights and the proposal will be most closely considered in relation to the nearby A&I Hall, the Scout Hall and Gate House. In Mr Staas' opinion, the bulk and scale of the proposal is appropriately modulated by the articulated built form and is compatible with the existing eclectic historic character of the town and achieves an acceptable fit in the varied streetscape character. He acknowledges it will be larger when viewed from south, when compared to a number of the established buildings in Station Street.

  1. Mr Layman noted that the existing character of Station Street is different to that of Byron Street, as Byron Street is typified by street wall commercial development, whereas Station Street typically has dispersed built form in a landscaped setting. Mr Layman considered that the bulk and scale of the proposal is excessive and will have an adverse impact on the built environment of the locality.

  1. Mr Layman referred to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (Project Venture planning principle) and in his opinion, the proposal's height, setback and landscape are inconsistent its Station Street context, as in Station Street, the landscape dominates the buildings, as opposed to Byron Street, where the buildings dominate the landscape. The relationship between built form and open space is addressed in the Project Venture planning principle, 'compatibility in the urban environment', as follows:

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.
23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.
24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.
Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
Is the proposal's appearance in harmony with the buildings around it and the character of the street?
25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.
26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.
27 Buildings do not have to be the same height to be compatible. Where there are significant differences in height, it is easier to achieve compatibility when the change is gradual rather than abrupt. The extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.
28 Front setbacks and the way they are treated are an important element of urban character. Where there is a uniform building line, even small differences can destroy the unity. Setbacks from side boundaries determine the rhythm of building and void. While it may not be possible to reproduce the rhythm exactly, new development should strive to reflect it in some way.
29 Landscaping is also an important contributor to urban character. In some areas landscape dominates buildings, in others buildings dominate the landscape. Where canopy trees define the character, new developments must provide opportunities for planting canopy trees.
30 Conservation areas are usually selected because they exhibit consistency of scale, style or material. In conservation areas, a higher level of similarity between the proposed and the existing is expected than elsewhere. The similarity may extend to architectural style expressed through roof form, fenestration and materials.

  1. According to Ms McCabe, Station Street is an eclectic mix of buildings with religious, institutional, commercial and residential buildings, including single storey detached dwellings, some located close to street and others set back. The proposal's rear alignment matches that of the Scout Hall adjacent, it is appropriately a two storey scale, with pitched roofs. In her view, the planning controls anticipate a change in scale in Station Street and the bulk and scale of the proposal is in keeping with both the saved controls and those under the new planning regime. Importantly, in her opinion, the planning controls do not distinguish between Byron Street and Station Street, except for one sentence.

  1. I accept and adopt Mr Brooks' evidence regarding the effect of amalgamating the allotments and proposing a single mass across the amalgamated site, which results in an uncharacteristically large building in Station Street. As noted by the experts, there is a shift in character in Station Street, as Byron Street has a main street urban character and the buildings in Station Street have a landscape setting.

  1. While the planning regime, both saved and now in force for the local centre zone, anticipates a greater density of form that the existing cottages in Station Street (two storeys with pitched roofs and increased site coverage), the reality is that the desired future character of a conservation area is fundamentally the preservation of the existing character and that is why it is identified as a conservation area. The future character of the the Bangalow HCA will be dictated by the identified heritage values of the area and infill development in the Bangalow HCA has to fit within these constraints. The singular bulk and scale of the proposal and the lack of articulation of the overall form is not appropriately respectful and deferential to its historic context.

  1. I accept Mr Brooks' evidence that the overall height of the proposal is not the issue and the experts agreement that a two storey building is acceptable, had the proposal been appropriately articulated with hipped or gabled roofs with ridges at a similar height to the proposed flat roof. It is the large, unarticulated mass of the proposed building that exacerbates the overall bulk and scale of this building and makes it impossible to design a pitched roof, without resorting to the flat section in the middle. I agree with Council's experts' evidence that the roof design is unnecessarily complex and an unsuccessful attempt to disguise the bulk and scale of the proposal and that when seen in three dimensions, it would not successfully relate the proposal to the existing pitched and gabled roofs in Station Street.

  1. The proposal, in order to ameliorate these impacts, requires a much greater articulation in its form, so as not to appear as one single mass, but instead to have a projecting wing or wings, for example, in order to acknowledge the original subdivision pattern and scale of Station Street, and to incorporate courtyards with landscaping, so that the building retains a landscape setting and a scale in keeping with its deferential position close to the heritage listed A&I Hall.

  1. The proposal is not in harmony with the existing or future character of Station Street. It is not compatible and has not responded to the essential elements that make up the character of the surrounding urban environment. The form and scale of the proposal has an adverse impact on the heritage values and existing character of Station Street and the Bangalow HCA and the heritage items in Station Street, particularly the A&I Hall. The proposal is contrary to the aim of LEP 2014 to protect the cultural heritage of Byron Shire and it would have a detrimental impact on the identified heritage significance of the Bangalow Heritage Precinct.

Basement car park and access from Station Lane

  1. The traffic experts agreed on the following:

  • the number of parking spaces in the basement carpark is adequate to serve the proposed development;
  • the provision of an off-street loading space is unnecessary, as it would require trucks to use Station Lane and it is preferable for loading and unloading to be done in Station Street in a dedicated loading zone adjacent to the commercial tenancies;
  • the access arrangements from Station Lane and the access ramp are satisfactory, including swept paths and pedestrian sightlines;
  • the principal generator of traffic in Station Lane is the bottle shop, which has its vehicular entry from Station Lane and exit onto Station Street and is closer to Byron Street than the site;
  • the 5.5m width of Station Lane is adequate for the intended low speed service road condition if vehicle parking is removed from the laneway; and
  • the sealed carriageway would have to be extended over the unmade portion of Station Lane to provide access to the site.

  1. The traffic experts agreed that the potential for pedestrian/vehicle conflict as a consequence of providing vehicular access for the proposal is 'relatively minor', according to Mr Coady and 'low', according to Mr McLaren. In Mr McLaren's opinion, there is still a risk that is increased by adding extra traffic to a constrained lane that has no safe pedestrian path or crossing point along its length and he would support the laneway access to the proposal if changes were made to the use of Station Lane by school children and vehicles associated with the school.

  1. According to Mr McLaren, the current use of Station Lane by school children and by vehicles associated with the drop off/pick up zone in the lane is an unsafe practice and a Road Safety Audit of Bangalow Public School's activities is required, focussing on the arrival and departure times of school children along all three road frontages of the school site and including recommendations on the appropriate measures required to create a safter localised environment around the school (exhibit 7, p 4).

  1. The experts disagreed on the extent of upgrading required for Station Lane and what contribution the applicant should make to any upgrading of the laneway, over and above extending the sealed carriageway to access the rear of the site. According to Mr McLaren, a 5.5m wide pavement condition along the full length of Station Lane, involving minor widening works, should be imposed as a condition of consent. According to Mr Coady, such a requirement would be disproportionate with the amount of traffic generated by the proposal along Station Lane.

  1. I accept the agreement of the traffic experts that the basement parking is adequate for the proposal and that the access to the basement parking from Station Lane is acceptable, notwithstanding that some new arrangements would have been desirable to create a safer pedestrian and vehicular environment around the school.

  1. I am satisfied that basement parking, accessed from the laneway, is a superior solution to parking on-site or basement access from Station Street, for the following reasons:

  • basement parking removes parked cars from the site and this is better heritage outcome;
  • basement parking ensures adequate provision of car parking facilities in the business zone, pursuant to cl 9(e) of LEP 1988 and by allowing a greater number of cars to be parked on the site, it relieves some of the burden of on-street parking in the town centre;
  • access to the basement from Station Lane allows the street front to Station Street to remain uninterrupted by a ramp, minimising the conflict between pedestrian and vehicular movements in Station Street, pursuant to cl 9(f) of LEP 1988;
  • Station Lane provides rear access to all the commercial properties on the western side of Station Street and the staff car park of the school and consequently there is an expectation that the laneway will be used for slow moving vehicular traffic; and
  • it is the responsibility of the school, in conjunction with the Council and community, to make suitable and safe arrangements for its pupils to arrive and leave the school.

  1. The excavation required for the basement car park of the proposal is acceptable and achieves the object of minimising disturbance to the natural landform, at C2.7 of DCP 2010. Presumably the limitation of earthworks to a depth of 1m at C2.7 simply does not envisage the option of basement parking in the business zone. Nevertheless, as the proposal achieves the object of the control, it is appropriate to exercise the flexibility afforded by s 79C(3A)(b) of the Environmental Planning and Assessment Act 1979 in relation to the limitation on the depth of earthworks.

  1. Given my findings in relation to the detrimental and unacceptable impact of the proposal on the heritage significance and existing character of the Bangalow Heritage Precinct/HCA, there is no need to deal with the disagreement of the traffic experts regarding the extent of upgrading required for Station Lane and whether or not it is appropriate that those works be provided by the applicant.

Conclusion

  1. There is insufficient evidence before me to make a finding contrary to Council's long held position regarding the existing cottage on the site not being of heritage value, other than being located within the Bangalow Heritage Precinct, and therefore I accept Mr Staas' evidence that the existing cottage makes little contribution in heritage terms to the character of the streetscape and the its removal will not have any substantial adverse impact on heritage values of the Bangalow Heritage Precinct/HCA. A requirement that the existing cottage be relocated elsewhere should not be imposed, as any contribution the existing cottage may make to the Bangalow HCA is inextricably tied to its site and its relationship with the streetscape.

  1. I am satisfied that basement parking, accessed from the laneway, is acceptable, as it ensures adequate provision of car parking facilities in the business zone and access to the basement from Station Lane allows the street front to Station Street to remain uninterrupted, minimising the conflict between pedestrian and vehicular movements in Station Street.

  1. The bulk and scale of the proposal, as a result of amalgamating the allotments and proposing a single mass across the site, with a predominately flat roof, would have a detrimental impact on the identified heritage significance and existing character of the Bangalow Heritage Precinct/Bangalow HCA and heritage items in the vicinity of the site and the impact is of such consequence, that the application should be refused.

Orders

  1. The orders of the Court are:

(1)   The appeals are dismissed.

(2)   Development Application No. 10.2013.570.1 for the demolition of existing structures and construction of a two storey, residential and commercial building, including 8 dwellings, 3 shops and basement car parking at 9 Station Street, Bangalow, is refused. DA10.2014.4.1 for the removal of two street trees is refused.

(3)   The exhibits, other than exhibits, are returned.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 10 October 2014

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