Graham Ormsby and Associates Pty Limited v Hunters Hill Municipal Council

[2005] NSWLEC 616

Land and Environment Court

of New South Wales

CITATION:

Graham Ormsby and Associates Pty Limited v Hunters Hill Municipal Council [2005] NSWLEC 616

PARTIES:

APPLICANT
Graham Ormsby and Associates Pty Limited

RESPONDENT
Hunters Hill Municipal Council

FILE NUMBER(S):

10496 and 10497 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Alterations and additions to a heritage dwelling - construction of 2 storey garage/studio - impact on heritage item and conservation area - streetscape - amenity of the neighbourhood.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hunters Hill Local Environmental Plan No. 1
Hunters Hill Development Control Plan No. 15

DATES OF HEARING:

12/10/2005 and 26/10/2005

 
DATE OF JUDGMENT: 

11/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. M. Pickles, barrister
instructed by Ms L. Leele, solicitor
of Mallesons Stephen Jaques

RESPONDENT
Mr J. Cole, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

3 November 2005

10497 of 2005 Graham Ormsby and Associates Pty
10496 of 2005 Limited v Hunters Hill Municipal Council

JUDGMENT

1 These proceedings involve the following two appeals concerning alterations and additions to a heritage listed dwelling situated at No. 18 Prince Edward Parade, Hunters Hill:

• Appeal No. 10497 of 2005; an appeal against a s96 application to modify conditions of consent associated with alterations to the existing dwelling, with particular reference to front and side boundary setbacks,
• Appeal No. 10496 of 2005; an appeal against councils refusal of development application to demolish an existing, single storey, 3-car garage fronting Gladstone Street and replace it with a 2-car garage and studio above.

2 The parties agreed to both appeals being heard concurrently. The main following issues were identified for the appeal:

• impact on the heritage area,
• streetscape impact,
• amenity of neighbourhood.

3 In response to these issues, the parties agreed to Mr D.Logan being appointed the Court expert on the heritage issues. Accordingly he prepared a detailed assessment report (Exhibit 6). This report together with the written and oral objections was considered. Also Mr G. Patch provided a heritage assessment report (Exhibit 7).

The site.

4 The subject site is situated on the north-western corner of Prince Edward Parade and Gladstone Avenue, Hunters Hill. The site is listed as DP 333491 and has a total area of 977.5 sq m. It has a frontage of 18.335 m to Prince Edward Parade and frontage of 36.625 m to Gladstone Avenue.

5 Currently standing on the site is a single storey dwelling house and a detached 3 car garage on the eastern corner of the site. This existing house is a listed heritage item (Canberra) and the site itself is located within a conservation area. The subject site is also located near a heritage item at No. 59 Woolwich Road and Prince Edward Parade Reserve.

6 The surrounding residential area comprises 1 and 2 storey dwellings of the early 19 and 20th century architectural styles.

7 The appeal against the s96 modification application is in relation to the following conditions that were imposed in councils conditional consent:

• Deferred Commencement Condition 2 - The new additions along the western boundary from the proposed Bedroom 4 to the master bedroom are to stand 1.5 m from the side boundary, also
• Condition (1) The additions along the western boundary are to stand 10.5 m from the front street alignment from Prince Edward Parade so that the existing sandstone elements and brickwork at the existing sunroom is retained.

8 The proposal in respect of the garage involves:

• demolition of the existing triple, flat roof garage situated on the north- western corner of the site.
• construction of a replacement double garage, basement wine cellar and studio apartment within the roof space of the garage. The roof structure is to have a hipped end adjacent to the street and a gabled end with a further gable projection at the end closest the house.

Planning controls.

9 Hunters Hill LEP 1. Under this LEP the site is zoned Residential 2(a1). The house is a listed Heritage Item in Schedule 9 and it is situated within a Conservation Area. Clause 19 deals with heritage considerations.

10 Development Control Plan No. 15. This DCP has operated from 2 March 2000 and its purpose is to provide more detailed planning and development controls to complement the LEP. These detailed controls have been prepared to ensure that new dwellings and additions to existing dwellings perform well as "good neighbours", respect the distinctive character and heritage of the Municipality and consider the amenity of nearby residential properties.

The evidence.

11 In addition to the Court-appointed expert, Mr Logan's assessment, a further heritage assessment was presented by Mr G. Patch (Exhibit 7), council's heritage consultant. The oral evidence given on-site has been considered, together with the written objections contained in council’s bundles of documents (Exhibits 1,2).

12 Dealing firstly with the s 96 application, the original application proposed a side boundary (western) setback of 1.1 m. Consequently the deferred commencement condition required an amendment to achieve the DCP's designated 1.5 m setback (i.e. an increase of 400mm). However in Mr Logan's assessment, there are no adverse heritage impacts resulting from this non-compliance and he supports the deletion of this deferred commencement condition. The council offers no challenge to this conclusion.

13 However, objections were made by the owner of the neighbouring property, Ms J. Marland. Her concern is that the non-compliance with the DCP setbacks, will result in acoustic disamenity to her rooms adjacent to the common boundary, there would be a loss of air circulation and privacy.

14 But the site inspection confirmed that there is a substantial 2 m high (approx.) masonry, dividing fence along the common boundary, adjacent to which is mature landscaping. Taking into account the screening effect of this existing fence, there is no substantive evidence to confirm that the incremental reduction of approximately 400 mm in the side boundary setback will cause any undue disamenity to the neighbouring property. Therefore I do not consider this objection warrants refusal of the section 96 modification.

15 The other aspect of the section 96 modification relates to the street frontage setback. However after Mr Logan's initial assessment, the proposal was further amended, so that the approved additions are now to be setback back approximately 2.8 m from the front of the dwelling, which is in line with the front wall of the master bedroom on the other side of the sunroom and maintains views of the existing sandstone elements and brick work. Mr Logan now supports the amendment and says that:

The additional setback is consistent with the recommendation made in my preliminary advice to the parties and is also consistent with intent of the Deferred Commencement Condition imposed by Council.

16 I am satisfied that this amendment satisfies the front boundary setback controls, so that this condition of consent should be deleted, by way of the s96 modification.

17 The associated appeal then concerns the demolition of the existing triple garage and its replacement with a double garage incorporating a studio within the roof space. As this proposal also incorporates a basement wine cellar, it is classified as a 3 storey building, which exceeds the 2 storey limit and therefore a SEPP 1 Objection was lodged against this development standard.

18 Mr Logan's assessment has been undertaken in accordance with the extensive heritage and planning control framework for this conservation area. This assessment is required because of the primary controls in clause 19 of LEP 1, which restricts demolition and alterations of an item unless council has considered such assessment.

19 In particular clause 19 (3) states:

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

20 In addition to this, clause 19 A contains similar restrictions within a conservation area and it specifically requires an assessment of -

( a) the pitch and form of the roof;
(b) the style, size, proportion and position of the openings for windows and doors; and
(c) whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the existing buildings in the conservation area.

21 DCP 15 contains further detailed design guidelines for all residential development and is cross-referenced to the provisions of clauses 19,19A and 19D. The general planning policy objectives are contained in section 3 and relevantly include:

b. Development, particularly when viewed from the street or other public place should be compatible with the character and scale of any existing building to be retained on the site and residential development in the immediate vicinity…
d. In areas of significant stylistic/architectural associations and identity, additions and new development should be designed in sympathy with their surrounds.

22 Section 4 contains the detailed planning policy for heritage conservation areas. Included in the principles which apply to heritage items is:

Substantial extensions may be acceptable where they do not affect the integrity or character of original building. Extensions which are separated from the original building, which respect the shape, scale, materials and finishes of the original buildings, and are designed in a simple unobtrusive style can be these criteria. The architectural style and details of new work should compliment, not imitate or compete with the original building.

23 The other detailed development controls provide in:

7.1.2 (a) that a building should not contain more than 2 storeys,
7.2.2/3 front & building setbacks shall be observed.

24 Section 8 contains the detailed controls for garages and carport on the basis that:

It is important to recognise that early garages did not draw attention to themselves or compete with the major buildings on the site. Early garages within the front boundary setback were an exception, not the rule.

25 The controls generally require consideration of the following matters:

• large garage structures can have a detrimental impact on the townscape,
• garages should avoid blocking views of the building already on the site and public views between the buildings. Garages and carport are utilitarian structures and their design should be subservient to the scale, form, materials and colours of the house to which they belong,
• detailed consideration should be given to roof design where a well-designed flat roof structure may often be a better solution to minimise the visual impact on an existing house.
  

26 It is apparent from this raft of controls that the threshold issue in this matter concerns the streetscape impact of the proposed "2 storey" garage within the sites heritage/conservation context. This involves consideration of the effect of demolishing the existing 3 car garage, the height and style of the roof of the garage/ studio and its setbacks.

27 According to Mr Logan's assessment, he does support the proposal because:

• the proposed hipped end of the roof adjacent to the street and further gabled end closet to the house would be quite visible from the street/public domain and restrict views of heritage item and also other views of surrounding vegetation, which is an important element in the garden suburb setting;
• the visual bulk of the proposal would be more prominent in oblique streetscape views due to the visibility of the new roof form when compared with the open views that are currently available above and around the existing flat roof structure. This is notwithstanding that the new garage will be some 2m narrower than the existing structure;
• the relative steepness of the roof pitch, whilst matching that of the main roof of the house, should preferably have a lower pitch to reflect its subservient role.

28 Against this, Ms J. Hill, a heritage architect submitted her alternative opinion that:

• the proposed form of the garage is seen to reinforce the pattern of pitched structures in the streetscape. The garage replaces a triple garage which is detracting from the heritage significance of the house due to its length, number of doors and detailing of the doors,
• the reduction to a two-car garage, with doors of vertical portions is an improvement, which also allows more open views of the original house from the street,
• the proposed pitched roof reinforces a pattern which is characteristic of the streetscape.

Conclusions

29 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the amended plans for the s96 modification application should be allowed. These modifications now satisfy the front boundary setback controls and whilst there is a minor non-compliance with the side boundary setbacks, I am satisfied that this does not adversely affect the heritage significance of the item or conservation area. In this regard I rely on the opinions Mr Logan.

30 With respect to other associated amenity impacts on the neighbouring properties, I am satisfied that the substantial, existing masonry dividing fence will restrict any amenity impacts to a reasonable degree, considering the relatively small incremental change resulting from the s96 modification.

31 Turning to the garage appeal, I have assessed the competing positions and consider that due regard should be given to the context of the site in order to adequately assess the cl 19 requirements of LEP 1. In his statement, Mr Patch has usefully included the following background details of this property, which is named "Canberra" and was built by John C Solomon in 1912.

Dr Beverly Sherry, in her "Hunters Hill, Australia's Oldest Garden Suburb" (1989) gives the following account of the development of the area:
The most notable residential development surviving from the Federation period is in Prince Edward Parade. Prince Edward and Prince George Parades were part of the Sunnyside Estate, subdivided in 1880-81, with all the allotments fronting onto a grassy central reserve. Two houses were built in Prince George Parade in the 1980s. Then, from 1900 to 1914, 15 bungalows went up in Prince Edward Parade. The Hunters Hill Trust notes that these houses ‘were built on a one-storey scale, with low-key fencing; some having altered over the years, but the intent of the subdivision, a quiet, residential neighbourhood, remains, and as the area has an entity it should be recognised and protected. And as has been noted, while Hunters Hill was from its beginnings the garden suburb, this development, with its uniform architecture, trees along the footpath, and houses arranged around green reserve, shows the hallmarks of the specific Garden Suburb Movement of the Federation period.

32 These comments confirm the significance of this site within the Sunnyside Estate. Insofar as it is currently compromised by the existence of the unsympathetic 3-car garage, I accept Mr Logan's general principle that where alterations are made to heritage sites, it should result in positive outcomes in terms of heritage impacts. I also accept his opinion that the more recently completed 2-storey garage opposite subject site should not be used as a benchmark for further 2-storey garages, because it was approved prior to the adoption of the current DCP controls, which now seek to avoid this form of development.

33 Accordingly, it is apparent from the view that the proposed 2-storey, garage/studio, is of an uncharacteristic style and scale in this neighbourhood. This is confirmed in that the raft of development controls do not specifically recognise this type development. Therefore in my assessment of the current controls, the overall intention is to maintain the integrity of the heritage qualities of the area, which necessitates a higher standard of compliance with the controls, for this uncommon style building, rather than partial compliance with individual components of the separate controls for heritage, dwelling and garages.

34 On this basis, a complying development would not allow a 2-storey (residential) building with the minimal front and side boundary setbacks as proposed. Then taking into account that the visual impacts of the proposal are a critical consideration, I am persuaded to accept Mr Logan's opinion that the 2-storey form of the 2-car garage presents as a bulkier, less attractive intrusion into the streetscape, when compared with the single level, flat roofed, 3-car garage (albeit recognising its unattractive design).

35 Furthermore I accept his opinion that this intrusion is compounded by the pitched roof form, which is necessary to provide sufficient headroom for the residential studio use. Insofar as there was some argument that parts of the controls encourage pitched roofs to follow the main building roofline, nevertheless in this case I accept Mr Logans interpretation that the garage/carport controls prefer flat roofs, which better achieve the objective for any detached building appearing subservient to the main building.

36 Another relevant point made by Mr Logan concerns the opportunities to view the heritage item in it is landscaped context. Even though the proposed 2-car garage results in a marginal widening of the street viewing corridors towards Canberra, nevertheless the 2-storey element reduces significant views of the buildings roof and its vegetative backdrop. In my opinion these impacts are negative in terms of heritage considerations and does not reasonably satisfy the aims and objectives in Clause 2 of LEP 1, which requires that:

The aims and objectives of this plan are to conserve the identity of the Municipality of Hunters Hill, as established by its heritage, character, topography and residential amenity by:

(b3) ensuring that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of the items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart to the land to which this plan applies.

37 In summary then, I rely on Mr Logan's assessment and conclusions, to refuse the application because:

• the existing garage is less than desirable from heritage viewpoint and would not be consistent with council's current planning instruments;
• notwithstanding the above, the proposed new garage would result in increased heritage impacts, when compared with the existing structure, due to its relatively steeply pitched roof form; and
• the proposed garage would not satisfy Council planning controls, in particular, the objectives and principles for the design and location of garage and carport structures contained within Part 8 of DCP No 15.

38 Insofar as a SEPP 1 objection was lodged against the development standard allowing a maximum height of 2-storeys, because the proposal is technically classified as 3-storey due to its basement level, I note this was not supported by council due to concerns about impacts on items of heritage significance. However as this application fails on its merit considerations, determination of the SEPP1 objection is not required in this case.

1 Appeal No. 10497 of 2005 is allowed.

2 The s 96 Modification to the Development Consent for alterations and additions to the residence situated at 18 Prince Edward Parade, Hunters Hill, is allowed subject to the deletion of deferred commencement condition 2 and condition 1.

3 Appeal No. 10496 of 2005 is dismissed.

4 Development consent for a 3 level garage/ loft building at 18 Prince Edward Parade, Hunters Hill, is refused.

5 The exhibits may be returned except for 6,7,A and E.

6 No order as to costs.

___________________

R Hussey
Commissioner of the Court
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