Hanley v Baulkham Hills Shire Council
[2004] NSWLEC 485
•08/20/2004
Land and Environment Court
of New South Wales
CITATION: Hanley v Baulkham Hills Shire Council [2004] NSWLEC 485 PARTIES: APPLICANT
RESPONDENT
Paul Hanley
Baulkham Hills Shire CouncilFILE NUMBER(S): 10296 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- rear deck extension to a heritage item - materials of construction - minimisation of impact on heritage significance LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 1991
Development Control Plan No. 10 HeritageCASES CITED: DATES OF HEARING: 20/08/2004 EX TEMPORE
JUDGMENT DATE :08/20/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr S Klinger, solicitor
SOLICITORS
Steven Klinger
Mr A Wheally, solicitor
SOLICITORS
Pricewaterhouse Coopers Legal
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
10296 of 2004 Paul Hanley v20 August 2004
- Baulkham Hills Shire Council
JUDGMENT
1 This is a judgment at an on-site hearing held on the 20 August 2004 in appeal No. 10296 of 2004 in the matter of P Hanley and Baulkham Hills Shire Council in regard to conditions of consent for a rear elevated deck that was approved by the council in consent dated 11 May 2004.
2 This is at Lot 8 DP 1014035 known as Unit 8 at 174 Old Northern Road, Castle Hill. The applicant had appealed against Conditions 4 and 5 of approval application No. 590/2004/LA.
3 Those conditions required that the floor of the deck be constructed in timber, with compressed sheet floor panels and planter boxes on the outer sides of the deck just inside a timber balustrade. These conditions were originally imposed due to the building being a heritage item. It was a house known as Durham Park and there was a statement of heritage significance included in the report in Exhibit 3 from the Baulkham Hills Heritage Study 1993-1994 which said that the house stands on part of land granted to Thomas Bradley, a free settler of 1799 who was granted the land in 1807.
4 The present house was built in 1923 by Mr & Mrs Meloy, breeders of Durham cattle, a shorthorn breed of beef cattle which originated in Durham, England. The house was built of an unusual brown brick on a sandstone foundation. The property has been used as a wedding reception centre since 1964. Its heritage significance is:
- As evidence of suburban subdivision influenced by the opening of tramway in 1910 in the locality giving rise to a collection of early suburban houses along Old Northern Road with spacious grounds and formal mature garden, an important element along Old Northern Road.
5 The applicant wished to amend the design of the rear deck to incorporate a concrete slab, with a brick planter box around its outer perimeters with sandstone capping, and a small timber balustrade on the outside edge.
6 The deck was to be elevated. There was to be excavation underneath to allow cars to be parked beneath away from inclement weather. The applicant was concerned that any other form of deck could lead to weather reaching the cars, and preferred concrete. A concrete slab was required to support the brick planter boxes which were of a higher quality and more closely to the quality of the heritage item than the previous design would be.
7 There was to be additional screen planting of pine trees between the deck and the boundary in order to ensure the privacy of the nearby other houses on the strata title of the community strata subdivision.
8 In considering the evidence the Court was taken to the Baulkham Hills Local Environmental Plan 1991 to objective cl 2(1)(d) and cl 2(2)(j) requiring that any alterations or additions to buildings be compatible with the host building and protect the heritage of an heritage item.
9 The property was in Zone 2(b) Residential and the proposal was permissible with consent. The principle concern was that the house, Unit No. 8, was on Sch 1 of the Local Environmental Plan as a heritage item and therefore the provisions of cl 18 are applied. Also applicable was Development Control Plan No. 3 cll 1.3 and cll 3.19 and Development Control Plan No. 10 on Heritage especially cl 5.3 which applied to additions and alterations.
10 By initially proposing the timber deck, it was a temporary structure that in the future could be removed to restore the house in its original state.
11 Mr Workman the council’s heritage planner had furnished a further memorandum which was in Exhibit 4, and others were in Exhibit 1. They indicated that the conversion to a concrete floor would not affect the significance of the heritage item any more than the original lightweight deck, provided it could be an independent structure to enable it to be removed. Being independent it would give clear definition between the heritage item and the future extensions. The deck was at the rear of the house, on one of the least likely to be seen elevations and certainly not visible from the street. And due to the boundary screen vegetation it would hardly be visible from the other adjoining houses on the subject property.
12 During the hearing additional conditions were imposed that required any excavations to ensure that there was no disturbance to the existing structural brickwork and sandstone base courses. And, that any exposed under pinning should be finished in sandstone to match the existing. Also that the deck must be totally independent of the house structurally and supported on its own columns and beams, so that once again there would be no disturbance of, or attachment to the existing brickwork or sandstone wall.
13 In Condition 2 of the draft conditions there were annotations in regard to additional screen tree plantings and the landscape plan.
14 The on-site hearing was attended, for the applicant by:
- Mr S Klinger, solicitor and
- Mrs Hanley
15 For the respondent the hearing was attended by:
- Mr A Wheally, solicitor
- Mr B Linton, manager of building control, Baulkham Shire Council and
- Mr D Workman, heritage planner of Baulkham Hills Shire Council
16 There were no objectors.
17 In considering the application the Court come to the following conclusions: that the change of materials would have little impact on the heritage item compared to the original structure approved by council. The changes would result in what might be considered a higher quality of construction having the brick planter boxes with sandstone capping that would more appropriately match the house. And also the columns supporting structure would it would be clad in sandstone which would match the stone base courses of the heritage item.
18 The additional changes to make it an independent structure would separate it clearly from the house. In the future it could in theory be dismantled without any affect on the heritage item and that it was an appropriate change to the original consent of the council. The subject plans were contained in Exhibit A.
19 Therefore the orders of the Court are:
1. The appeal is upheld.
2. Council consent No. 590/2004/LA dated 11 May 2004 in respect of a house called Unit 8 at 174 Old Northern Road, Castle Hill, is amended by the deletion of Conditions 4 and 5. The updated conditions are re-issued in total as in Exhibit 2 of this hearing as amended by Exhibit 5, as set out in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits A, 2, 4 and 5.
- ___________________
K G Hoffman
Commissioner of the Court
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Annexure “A”
Conditions of Development Consent
Paul Hanley v Baulkham Hills Shire Council
Approval is granted for a rear deck in reinforced concrete with brick planter boxes having sandstone cappings and a timber balustrade on the outside edges of the deck, fully supported independently of the house by its own columns that are to be finished full height in sandstone to match the house as shown on drawings in Exhibit A of this appeal being Drawing Nos. IAI0 amendment C and IAII amendment D by Australian Construction Partners Pty Ltd, all as amended by and in accordance with the following conditions. No works to be commenced until after the issue of a construction certificate.
1. Construction Certificate
Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.
A pre-lodgement meeting is required for medium density/class 2-9 developments if lodging the Construction Certificate Application with Council. Please contact Council’s Building Control Section on 9843-0431.
2. Colours, Materials and Finishes
Details of all colours, materials and finishes are to be submitted for endorsement by Council’s heritage staff prior to construction. In this regard, the deck and new door should either match the existing colour scheme or be of a neutral, complimentary colour.
3. During Excavation
If during excavation underneath the proposed deck area any remnant archaeological relics or similar are found, all work on the site is to cease and the NSW Heritage Office contacted immediately. All relics are to be retained in situ unless otherwise directed by the NSW Heritage Office.
4. Pine Trees
Provide an additional three (3) advanced 75 litre pot size pine trees in that area of the fence, which faces dwelling No.4. at 174 Old Northern Road.
5. The new rear deck shall be constructed independent of the house and supported on its own structure of separate columns and beams without any disturbance of the existing sandstone and brickwalls, nor any attachment to them.
PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE
6. Landscape Bond
Submission of a landscape bond in the amount of $5000.00 in the form of a cash bond or bank guarantee is to be lodged with Council prior to the issue of the Construction Certificate. It shall be refunded two (2) years following final inspection confirming works have been carried out in accordance with the consent.
PRIOR TO WORK COMMENCING ON-SITE
7. Builder’s Address
Notification in writing of the builder’s name, address, telephone and fax numbers to be submitted to the Principal Certifying Authority prior to work commencing.
8. Erosion and Sedimentation Controls – Minor Works
Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is landscaped and/or suitably revegetated. The controls shall be in accordance with the details approved by Council and/or as directed by Council Officers. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction produced by the NSW Department of Housing (Blue Book).
9. Structural Steel Certificate
Structural steel details regarding size of structural steel members to be submitted to the Principal Certifying Authority prior to work commencing.
10. Details of Footings/Slabs
Details of footings and slabs to indicate compliance with Australian Standard AS 2870-1996 Residential Slabs and Footings Construction shall be submitted to the Principal Certifying Authority prior to work commencing. The details shall include designation of the site classification in accordance with Section 2 of AS 2870.
11. Details of Underpinning
Details of Underpinning of the existing dwelling are to be submitted to the Principal Certifying Authority prior to work commencing. The underpinning is to ensure no disturbance of the existing sandstone and brickwalls, and, if visible, the underpinning shall be finished in sandstone to match the existing.
DURING CONSTRUCTION
12. Hours of Work
Work on the project to be limited to the following hours: -
Monday to Saturday - 7.00 am to 5.00 pm;
No work to be carried out on Sunday or Public Holidays.
The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.
13. Building Inspection Notification
The following critical stage inspections, shall be carried out by the Principal Certifying Authority or by another certifying authority with the agreement of the Principal Certifying authority:
a) Pier holes prior to the placing of concrete;
b) Prior to the covering of framework for any floor, wall, roof or other building element;
c) After the building work has been completed and prior to any occupation certificate being issued in relation to the building.
You are advised that Council provides the service of carrying out the above inspections at the rate of $66.00 each (GST Inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST Inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority, within a minimum of 2 days prior to commencement of work.
It is the responsibility of the builder and/or owner builder to obtain from or the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work.
NOTE: No building shall be occupied or used prior to a satisfactory final inspection being carried out.
1. To facilitate the orderly implementation of the objects of the Environmental Planning and Assessment Act, 1979 and the aims and objectives of Council’s Planning instrument.
2. To ensure that the local amenity is maintained and is not adversely affected, and that adequate safeguards are incorporated into the development.
3. To ensure the development does not hinder the proper and orderly development of the subject land and its surrounds.
4. To ensure the relevant heads of consideration under Section 79C of the Environmental Planning and Assessment Act 1979 are maintained.
For further information please contact either Mr B Linton or Mr D Workman at Baulkham Hills Shire Council.
- ___________________
K G Hoffman
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