Hird v Blue Mountains City Council - [2005] NSWLEC 329

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Hird v Blue Mountains City Council [2005] NSWLEC 329

PARTIES:
APPLICANT
Mr and Mrs Hird
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S):
10832 of 2004

CORAM:
Tuor C.

KEY ISSUES:
Development Application :- alterations
additions and adaptive re-use of heritage item
Heritage Incentives Clause
Whether conservation plan required
Impact on heritage significance
Whether item most appropriately conserved by the use of the proposed development
Impact on residential amenity - traffic and parking
noise and privacy

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Blue Mountains Local Environmental Plan 4
Draft Blue Mountains local Environmental Plan 2002

CASES CITED:
Hilley v Blue Mountains Council [2004] NSWLEC 412

DATES OF HEARING: 06 & 07/12/ 2004 and 24/02/2005

DATE OF JUDGMENT:

06/20/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Drury
SOLICITORS
Phillips Fox
RESPONDENT
Mr A Seton
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

20 June 2005

10832 of 2004 Hird v Blue Mountains City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Blue Mountains City Council (the council) of a development application (X03/1046) for alterations and additions to an existing heritage building and its use as a function centre with guest accommodation at 38 Blaxland Road, Leura (the site).

The site and its context

2 The site consists of three adjoining lots (lots 54-56 DP4722) located on the southern side of Blaxland Road with a combined area of approximately 5,941sqm. It has a main frontage to Blaxland Road of about 96m, a secondary frontage to Lake Street of about 92m and a depth of about 64m. This street is narrow with a steep incline and sharp corner at Blaxland Road.

3 The main house, known as “Silvermere”, is located on a knoll at the centre of the site with the land sloping away on all sides. A guest house (former Chauffeur’s cottage) and garage are located off Lake Street. The buildings are in landscaped grounds with established trees, perimeter hedges, grassed areas, terraces and formal driveway.

4 Adjoining the site to the east at 36 Blaxland Road is a house, known as “Coronel” set in substantial grounds that were built in 1919 and designed by the same architect as Silvermere. Although not listed as a heritage item it would appear to be of some significance.

5 To the west are two detached house; one facing Blaxland Road and the other facing Lake Street.

6 Surrounding development is single dwelling houses in landscaped settings. A small school is located opposite the site to the south in Lake Street.

Background

7 In 1998, the Council approved a development application to use Silvermere as a five room guesthouse.

8 The current application was lodged on 21 July 2003 and was notified to adjoining and nearby residents. Council received 51 submissions, 4 submissions in support and 47 submissions objecting to the proposal, including eight submissions who objected more than once and 28 pro forma letters.

9 The application was referred to the Heritage Council and Rural Fire Services. The Heritage Council provided general comments on the assessment of the proposal and specific comments recommending the deletion of the gazebo on the eastern terrace. Council also received a submission from the National Trust, which recognised the need for adaptive reuse of the property but raised concerns about the new guestrooms under the eastern terrace and the gazebo.

10 The proposal was amended in response to the comments of the Rural Fire Service and submissions. Two reports recommending refusal of the application were considered by Council on 9 March 2004 and 10 August 2004 respectively. At the time of the hearing Council had not determined the application.

The Proposal

11 The proposal as amended seeks to:

Planning Framework

12 The site is zoned 2(a1) Residential A1 under Blue Mountains Local Environmental Plan 4 (the LEP). The proposed use is prohibited within the zone.

13 The site is a heritage item under the LEP. The proposal relies for its permissibility on the heritage provisions in cl 58(8) of the LEP which states:

58 (8) the council may grant consent to development, other than subdivision, for any purpose, of a building that is a heritage item or is within a Heritage Conservation Area, or of the land on which the building is erected, even though development for that purpose would otherwise be prohibited by this plan, if it is satisfied that:

(a) the proposed development would not adversely affect:

the heritage significance of the building or Heritage Conservation Area;

the amenity of any Heritage Conservation Area within which the building is situated;

the heritage significance and amenity of the surrounding neighbourhood; and

(b) where the building is a heritage item:

the heritage item will be most appropriately conserved if used for the proposed development;

a conservation plan, prepared for the heritage item, supports the proposed development.

14 This clause was the basis for the earlier guesthouse approval.

15 The proposal is also subject to the provisions of Blue Mountains Draft Local Environmental Plan 2002 (draft LEP). Under the draft LEP, the site is zoned Living – Conservation Zone. Tourist accommodation, which includes functions such as receptions, is prohibited within the zone. The site is identified as a heritage item of State significance in the draft LEP. Under cl 76(1) - Conservation Incentives, the use is permissible with consent. Clause 76(1) states:

(1) Notwithstanding clause 32 (Land use matrix), the consent authority may as a heritage conservation incentive grant consent to the use for any purpose of a building that is a heritage item, or of the land on which any such item is erected, if:

(a) it is satisfied that the retention of the heritage item depends on the granting of consent, and

(b) the proposed use is in accordance with a conservation

management plan which has been endorsed by the Council,

and

(c) the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and

(d) the proposed use would not adversely affect the heritage

significance of the heritage item or its setting, and

(e) the proposed use would not unreasonably affect the amenity of the surrounding area.

16 In Hilley v Blue Mountains Council [2004] NSWLEC 412, Commissioner Brown considered the question of the degree of weight to be given to the draft LEP. He found that “there is a high level of certainty that the draft LEP will adopted in the form presented to the Court and consequently a high level of weight should be given to its provisions”. I accept these conclusions. In this appeal the intent of the heritage incentive provisions in the draft LEP and the LEP are similar, even though the wording is different.

17 Blue Mountains City Council Development Control Plan No 29 – Car Parking (DCP 29) is also relevant.

The issues

18 The Statement of Issues before the Court contained 7 issues. The application was amended to change the use of the new cottage from visitor accommodation to a private residence. This resolved Issue 6 relating to requirements of the Rural Fire Service. Issue 3 relating to car parking was resolved by proposed conditions although these were not all agreed to by the Applicant. The residents were still concerned about this issue and the traffic generated by the development. The key remaining issue can be categorised as whether the proposal satisfies the requirements of cl 58(8) of the LEP and cl 76 of the draft LEP in that:

19 The residents also considered that the proposal did not comply with these clauses as it would have an adverse impact on the heritage significance of the item. Council did not press this except for impact on the character of the area of the new fence along Blaxland Road.

The Evidence

20 The following experts provided statements of evidence or joint statements:

21 For the council

22 For the applicant

· Mr Z Kovacs, architect for the proposal
· Mr L Challis, acoustic engineer
· Mr V Sita, landscape architect for the proposal
· Ms M Perry, landscape architect
· Mr C McLaren, traffic engineer

23 Although not an expert in these proceedings, the assessment of the proposal by Mr M Robinson, heritage advisor to the Council, was tendered in evidence. An earlier assessment of Ms J Somerville, the previous heritage advisor, was also tendered.

24 A number of residents provided evidence on site. The following residents objected to the proposal:

25 The main concern of the residents was the impact on their residential amenity from the proposed use of the site for functions. They stated that functions previously held on the site generated unacceptable noise and traffic impacts for a residential area. The residents considered that the appearance of the additional four guest rooms and the changes to the garden setting, including removal of trees, to have an adverse impact on the setting of a heritage house. The residents did not consider that the conservation of the item should be at the expense of their residential amenity.

26 Mrs Shellard was also concerned about privacy impact on her property from the use of the terrace, gazebo and guest rooms and the drainage impacts of the proposal.

27 The following residents supported the proposal:

28 These residents supported the proposal on the basis that tourist accommodation and related activities were important to the Blue Mountains. They stated that the current owners had conserved the house and grounds, which were in a derelict condition when purchased. They acknowledged that the continued conservation of the house was dependent upon a viable use to cover the ongoing maintenance costs.

Conservation Plan

29 A Conservation Plan was prepared by John Greenwood + Associates, Architects (the Greenwood Conservation Plan) to accompany the development application to use the property as a guesthouse in 1998. This plan identified the levels of significance of the house and proposed conservation policies dependent upon that significance. Generally it recommends “the conservation of Silvermere and a return to original the elements described as very significant”. It recognises that:

the future use of the building will have a bearing on its conservation. As a family home Silvermere will be expensive to maintain and conserve the house and gardens. Adaptive reuse of Silvermere might allow income for its future conservation.

30 The Greenwood Conservation Plan included an assessment of the gardens by Richard Ratcliffe, a landscape architect. This assessment concluded that there was little documentary or physical evidence of the original garden and that it was appropriate to create a new garden in the “Arts and Crafts” style to complement the house. I note that the current owners have undertaken works to both the house and the garden in accordance with the Greenwood Conservation Plan.

31 The Greenwood Conservation Plan and an Assessment of Heritage Impact (heritage report), prepared by Mr Kovacs, were submitted with the current application. Mr Robinson reviewed both the greenwood Conservation Plan and the heritage report and concluded that:

This report builds on and expands the Greenwood conservation plan into a more comprehensive document which fulfils the functions of both a conservation management plan and heritage impact statement……..In my opinion the report is a well researched and well-prepared document which provides a good assessment of the impacts of the DA proposals on the heritage significance of the house and the setting.

32 Despite Mr Robinson’s conclusions, Mr Tully considered that the Greenwood Conservation Plan and the heritage report “do not address all the issues that are expected in a Conservation Management Plan”. In particular, it “should assess how other options with lesser impact compare to the proposal and why the proposed development is preferred” and that the proposed development was “significantly contrary to the principles identified in the submitted conservation plan”.

33 A Conservation Plan prepared specifically for this proposal would make the task of assessing the impact of the proposal easier. However, I find that the two reports, read in conjunction, meet the requirements of a Conservation Plan. Conservation Plan is defined in the LEP as:

“conservation plan”

means a document establishing the significance of a heritage item or of a building within a Heritage Conservation Area and identifying all the steps needed to be taken to retain that significance in its future use and development……..

34 The Greenwood Conservation Plan together with the garden assessment identifies the significant components of the building and garden and recommends conservation policies and works to be undertaken. I note that these works have largely been carried out by the current owners. The proposal does not include any significant internal changes to the building and there is sufficient information in the documents to assess the impact of the new balcony and the terraces on the significance of the building and its setting. The conservation plan recognises that alternate uses to a single residence may be necessary to ensure the conservation of the item and this is expanded upon in the heritage report. The heritage report identifies constraints on development arising out of the heritage significance. These include that:

· The perception of the site as a single entity with the house dominant in its centre on the hill must be retained;

· the formal integrity of the house in terms of its symmetrical planning must be retained ; and

no additions or extensions are to be permitted in order to retain the integrity of the item.

35 The heritage report also examines alternative locations for additional accommodation on the site and assesses the impact of the proposed development. These documents therefore establish the significance of the item, provide conservation policies and assess the development against these policies. Together they fulfil the requirements of a conservation plan and therefore satisfy cl 58(8)(b) in the LEP and cl 76(1)(b) of the draft LEP.

36 However, the documents do not identify the conservation works that need to be undertaken or a maintenance programme. Mr Robinson recommended a condition of approval undertake a review and updating of the conservation plan for the house and the gardens to provide a basis for future decision making and the preparation of a maintenance plan to guide their future management. I agree that this condition should be imposed.

Impact on heritage significance

37 The Council did not raise the impact on the heritage item as an issue but it was a significant concern of the residents. The evidence includes assessments of the impact of the proposal from the Heritage Council, the National Trust, Council’s previous and current heritage advisers as well as the architect for the proposal. These opinions are conflicting but that part of the development that raises concern is the eastern terrace, the new guest house accommodation and the gazebo. Other aspects of the proposal are generally supported by the different heritage opinions.

38 The main concern in relation to the terrace and the additional accommodation is that it alters the landform and changes the current symmetrical arrangement of the terraces to the building. The gazebo introduces an asymmetrical element to the eastern elevation. The various statements of significance identify the symmetry of the house as being important. This symmetry is reinforced by the terraced garden that surrounds the house.

39 Ms Somerville and the National Trust raised concerns about the impact of this building and the change to the landform and setting of the house. Mr Kovacs recognised that the building would “generate a visual impact on the setting of the item” which he considered to be acceptable as it would be “mostly invisible from the public domain” and not impact on the fabric of the heritage item or potential archaeological items. He considered the “subterranean” structure to have significantly less impact than a new building on the site. Mr Robinson shared this view and stated that:

The additional guest accommodation under the proposed East Terrace has been sensitively located and designed to minimise its impact on the house, the “Chauffeur’s Cottage” and their curtilage, and will have little adverse impact on them. The proposed accommodation makes use of the existing slope of the site and requires relatively little excavation, and this is at an adequate distance from the main house to ensure that excavation operations and the resulting building will not impact adversely on it.

The terrace will be at the level of the existing grassed platform on which the house sits, and will not change the house's relationship with the surrounding ground level. The accommodation below the terrace is of a ‘recessive’ configuration, design and materials, and this will minimise its visual impact on the house and its setting. The photo montages in the heritage report demonstrates that, because of the topography and existing boundary plantings, the proposed terrace and the guest suites under it will have little adverse impact on the views of the house from Blaxland Road or Lake street. The proposed gazebo is a glasshouse- like structure in keeping with its garden location.

40 I do not accept Mr Robinson’s opinion in relation to the gazebo. This is a lightweight glass structure about four metres wide and five metres to the top of its conical roof. It is at the same level as the house, close to its eastern façade in an asymmetrical position. The photomontages indicate that it will be viewed against this façade and appear from certain viewpoints higher than the gable ends of the house. I accept the views of the Heritage Council that the gazebo should be deleted as it “competes with the house and impinges on its views and setting” especially the symmetry of the façade which is an important part of the house’s significance.

41 The terrace and the additional accommodation will change the landform and the relationship of the house to its garden. The question is whether this change will have an adverse impact on the significance of the item. While it would be preferable for the current relationship to remain, and even though the proposed terrace and additional accommodation will impact on the significance of the house, I accept that the proposal to locate the additional accommodation within the slope of the land has less impact than an additional building providing this amount of accommodation on the site.

Is the item most appropriately conserved by the use of the proposed development?

42 Recognising the tests in cl 58 of the LEP and cl 76 of the draft LEP, the impact on significance needs to be assessed in the context of whether the use and the additional accommodation is necessary to ensure the ongoing conservation of the item.

43 The heritage experts recognised that while it was preferable that the house remained as a single residence, the proposed use of the property as a guesthouse and for functions did not adversely affect the significance of the item, and subject to amenity impacts, was acceptable for the conservation of the building. Mr Robinson stated that:

Holiday accommodation and social functions are traditional uses in the Blue Mountains, particularly for larger houses with extensive gardens. The additional guest accommodation and the occasional social functions proposed in the applications are consistent with this tradition and compatible with the heritage significance of the subject property. The additional accommodation and the additional use will have positive impacts in generating additional income to ensure the future management and maintenance of the property.

44 This conclusion needs to be assessed within the context of the permissibility of the development in a residential area, the likely impacts on amenity and whether the conservation of the item is most appropriately conserved by the proposal and its retention is dependent upon the proposal.

45 Clause 58(8)(b) of the LEP requires satisfaction with the requirement that:

the heritage item will be most appropriately conserved if used for the proposed development;

46 I understand this test to mean that the proposed use of the development, which would otherwise not be permissible in the zone, is justified only if it most appropriately conserves the item. In this case, the most appropriate use is that of single dwelling house, however, this is permissible in the zone and does not need to rely on the conservation incentives in the LEP or the draft LEP. The justification for an alternate use that is not permissible within the zone, would be based on whether the use appropriately conserves the item. To determine the appropriateness of the use would include a consideration of other uses, the impact of physical changes to the item necessary to accommodate the use and evidence that the use supports the ongoing retention of the item. The submission of the applicant is that the item would not be appropriately conserved without the proposed use due to the costs associated with maintenance and conservation works.

47 Clause 76(a) in the draft LEP has a similar requirement that the consent authority be satisfied that:

the retention of the heritage item depends on the granting of consent,

48 This relies on the applicant demonstrating that the ongoing conservation of the item is dependant upon the use and that the conservation requirements do not impose an unreasonable economic burden on the owner. Where the permissible use of the item is residential the reasonable costs to be met would be limited to those associated with maintenance and conservation works. The expectation that the use return a profit beyond that required for the ongoing operation of the enterprise is not a consideration.

49 The applicant submitted an economic analysis with the development application. This estimated the on going cost of maintaining the item and the expected income likely to be generated by different development scenarios. Further information was submitted in response to council requests for clarification. In the final economic analysis the applicant summarised the information in the following table and concluded that:

Silvermere is only economically viable unless it has at least four additional rooms with some level of function activity. If Silvermere were to revert to a private residence, the owner would have to be able to fund, on average, nearly $100 000 per annum in maintenance costs.

We contend that without functions Silvernere becomes more vulnerable to variations in the tourism market. Functions also provide opportunities for other Blue Mountains accommodation venues in non-peak tourist seasons as well as a range of local employment opportunities in catering, flower arrangements, wedding celebrants etc.

Table 1 Potential costs and gross income assuming a nightly room rate of $140

Used as a private residence

Current 4 rooms plus cottage

Current plus 28 functions

Plus 4 room East Terrace

Plus Gardener’s Lodge

Total Costs ($)
99100

189300

196800

252500

270300

Expected income ($)
0

30% occupancy
76650

113050

173370

189700

30% occupancy – high rental¹
93075

129475

203935

222550

50% occupancy
127750

164150

266350

291900

70% occupancy
178850

215250

358330

394100

50% occupancy – high rental¹
155125

191525

315625

346650

¹

- assumes a nightly rental rate of $170 per night

Incomes in bold exceed expected costs shown in Table 6 Shaded columns [reproduced in this judgment as embossed numbers in the relevant cells of the above copied table] are the most likely scenario according to current experience. The use of the house for functions means higher room rates because risk is reduced. The new buildings will be of 5-star standard also allowing for higher room rentals. Returns from the current house are restricted because of the ‘detached’ bathrooms which were a necessary consequence of Silverrnere's heritage status.

50 The above table does not include the cost of works associated with the new accommodation. It is assumed that the interest on money borrowed would be recouped through increased value of the property. The table also does not include the expenditure to date to conserve the building, which was in a “derelict” condition when purchased by the current owners.

51 Mr Tully in his assessment report of the development application questioned the justification for the inclusions of some items in the schedule of works. He stated that it “would require further analysis and justification before the proposal could be supported”.

52 The economic analysis of the proposal was not specifically raised in the Statement of Issues before the Court or in Mr Tully’s Statement of Evidence. In considering whether the proposal met this requirement in the LEP, Mr Robinson stated that:

The preferred option for the house would be to return to use as a single family residence. This would however, have negative impacts by restricting or preventing public access to the building and the site.

In my opinion the DA proposals represent a practical and appropriate alternative which would assist in supporting conservation and on-going maintenance of ‘Silvermere’ and its site while minimising adverse impacts on its heritage significance. In my opinion it is a much more appropriate outcome than construction of two additional houses on the site.

53 Mr Robinson also considered that the proposal met the requirements of the draft LEP.

54 The local residents questioned whether the proposal was justified on the basis of the need to maintain the building stating that other heritage items and old houses in the area managed to bear the economic burden of maintenance without the need for commercial use of the property. They questioned the estimate in the economic analysis of $100,000 for the annual costs of maintenance and the required conservation works for the house and garden.

55 There appears to be discrepancies in the economic analysis such as the $3000 increase in costs for the current guesthouse plus functions whereas when the four new guestrooms are added the costs increase by $33,000. The figure of $219,500 provided in the economic analysis of 29 January 2004 (folio 602 of exhibit 4) increased to $252,500 in the final analysis (folio 659 of exhibit 4) without explanation other than there being “minor errors”. The justification for the inclusion of these costs, which include the new building and guesthouse use is questioned.

56 The applicant’s cost estimates have not been refuted by alternate expert evidence or even disputed by council in this appeal. If I accept the figures and the assumptions upon which they are based the ongoing costs and the income from the extra accommodation and the functions are roughly balanced. From the figures, the proposal does not produce a profit that would be beyond the requirements of the clause to ensure conservation of the item.

57 The figures in the table are not explicit as to the additional costs and income that would be generated from the function centre component of the proposal. However, this can be adduced from the table as being $7,500 additional costs and an income of $63,775. Therefore a proposal which provided the additional guest house accommodation and not the function centre use would cost $245,000 and generate an income of $251,850. Therefore it would appear that the cost of conserving the item could be met without the function centre which is the component of the application that has the potential to impact most on the amenity of the area. However, in the absence of evidence to the contrary, I accept the applicant’s evidence that the function centre use is required to mitigate against fluctuations in the tourism market.

58 On this basis I am satisfied that the proposal meets the tests in the LEP and draft LEP that the proposal is most appropriately conserved by the proposal and its retention is dependent upon the proposed guest house and function use. The figures were based on 28 functions, which has been reduced to 17 without further analysis being undertaken. While there is a rationale for the need for the combined function and guest house use, the evidence that the conservation of Silvermere is dependent upon the number of people attending functions is not supported by the evidence.

59 I note that the property is on three separate lots and that sale of these lots could occur without any further approval. Although approval to develop these lots would be required it is not unreasonable to expect that development of a single dwelling house on each lot could occur. I agree with Mr Robinson that while this would reduce cost and provide income it would be a less appropriate heritage outcome.

Impact on amenity – traffic and parking

60 A major concern of the residents was the increase in traffic using Lake Street to access the site and the likelihood that the street would be used for on street parking. The residents were particularly concerned because Lake Street is a narrow street with no footpaths and the use of the school opposite the site already results in problems. They considered that even though parking was to be provided on site, guests would still park on the street which would make it difficult for other cars to pass and also generate noise from slamming doors and guests talking and laughing. They stated that it is difficult to turn around in Lake Street and that the sharp corner off Blaxland Street and the steep rise created dangerous traffic conditions. The unauthorised use of the property for functions in the past had demonstrated unacceptable amenity impacts.

61 DCP 29 requires on site parking to be provided at the rate of 1 space for the proprietor and 1 space per guest room. DCP 29 does not specify the requirements for functions. A Traffic Impact Study prepared by Mr McLaren was submitted with the application. The parking rate was based on the following assumptions:

· only guests attending functions will hire guest rooms

· proprietor parking consists of 1-2 cars

· 100% of guests arrive by car

· guest car occupancy is 2.8 – 3 persons per car

· 4 cars are generated by caterers, celebrants and photographer

62 The evidence on parking provision is confusing. The demand estimates in Table 3 of Mr McLaren’s Traffic Report, Mr Tully’s assessment and the parking layout plans show different figures and allocation of spaces to different uses. The change of the gardeners cottage to permanent accommodation also reduces the number of guest rooms. Notwithstanding this, I understand the demand for parking generated by the development would be:

· 2 spaces for the two residential uses (under DCP 29)

· 9 spaces for guestrooms (under DCP 29, assuming 2 person per 9 rooms)

· 11 spaces for remaining 32 function guests (car occupancy of 2.8 – 3)

· 4 spaces for caterers, photographer and celebrant.

63 This means that a total of 26 spaces are required for 50 person functions. For a function with 70 people 33 spaces would be required. I do not accept that Mr McLaren’s car occupancy figures should be applied to the guesthouse accommodation instead of the DCP 29 rate (6 spaces instead of 9) as the rooms accommodate two adults.

64 The proposal provides 22 spaces on site. Therefore the remaining 4 or 11 spaces would need to be provided on street. The conditions agreed to by the applicant states that all parking for 50 person functions is to be on site and that a maximum of three on street spaces are permitted for 70 person functions.

65 Mr McLaren’s evidence indicates that 2 additional spaces may be able to be provided on site. I note that the celebrant and photographer would leave earlier thereby freeing up 2 spaces. I am therefore satisfied that the guest parking for a 50 person function can be accommodated on site with two staff space on the street. However, in the absence of evidence as to where other spaces can be provided. I am not satisfied that the agreed conditions can be complied with for 70 person functions. While there are 10 on street spaces available and 2 stacked spaces in front of the garage. I do not accept Mr McLaren’s evidence that:

The low frequency use of on street parking is acceptable for special events, especially for sites with heritage significance, rather than limiting the use of these significant sites or further spoiling the heritage attributes of the site.

66 As a general principle, parking generated by a development should be provided on site thereby limiting the possibility for conflict and adverse amenity impacts. This is particularly important in this appeal as the development is only permissible if it does not adversely affect the amenity of the surrounding neighbourhood.

67 I agree that it is not desirable for the grounds of Silvermere to have large numbers of car parking spaces, even if these are informal spaces on grassed areas. From the evidence, I am not convinced that it is possible or appropriate for sufficient spaces to be provided on site to meet the demand generated from larger functions.

68 I note that a school is opposite the site, however, it is unlikely to be used at the same time as the functions. The two uses will therefore not impact upon each other or result in a cumulative impact. The properties to the east could be affected by noise from guests leaving in cars parked on the street. The street is narrow and a dead end and while it is possible to park on the street it is not without difficulty for other cars using the street as was demonstrated at the site view. The residents gave evidence that the informal functions that had occurred had impacted on their amenity. Even, if this occurs only once a month it is not appropriate in a residential zone from a use that would otherwise be prohibited.

69 From the evidence before me I am not satisfied that the conditions of approval for functions of up to 70 people can be complied with and that on street parking will not result in adverse amenity impacts.

70 Therefore approval of functions of up to 70 people is not warranted based on the current evidence. In coming to this conclusion, I do not consider that this is a reason that the whole application should fail. I propose to condition the approval to permit only functions up to 50 people. I recognise that even functions for 50 people, based on the number of spaces currently proposed, may result in some parking on the street especially while the four spaces for the eastern terrace and the western driveway are being constructed. The plans and conditions should be explicit about whether functions can occur prior to these works being carried out and if so where parking is to be accommodated. This should include considerations such as the provision of more temporary spaces on site or arrangements with the school or a reduction in the maximum number of people who can attend a function while the works occur.

71 The economic analysis was based on 28 functions per year. As stated above, I accept the rationale for combined guest house and function use but not that the conservation of the item depends upon functions of 70 people rather than 50 people. I note that the informal functions that have occurred which were either monitored by Mr Challis or surveyed by Mr McLaren were based on 36 to 55 people. It is therefore important to monitor the impact of similar sized functions with the proposed noise and parking arrangements in place before larger functions can be considered.

72 Limiting functions to 50 people at this stage does not preclude the applicant seeking approval for functions with 70 people at a later stage if it is demonstrated that the proposed development, operating in accordance with the conditions and management plan, does not adversely impact on the amenity of the area and are necessary for the conservation of the item.

73 Other conditions relating to traffic and parking that need to be addressed are:

Condition 8 – as stated above, the estimated demand generated by the development cannot be accommodated by the number and allocation of spaces in the parking layout plan. The condition should permit 12 functions for up to 50 guests to finish by 9.30pm and 5 functions with up to 50 guests to finish by 6pm. All guest parking is to be provided on site and the total number of on site car spaces for all uses is to be specified.

Specify whether functions can occur before the required car spaces are constructed on site or the alternate parking arrangements that are required.

Permit one charity function per year in accordance with the Functions Management Plan approved under Condition 6.

Condition 22

- not required if all guest parking provided on site

Condition 28 - unclear whether this applies to all parking spaces on site. Informal spaces are to be on grass and paving of these spaces would adversely impact on setting of Silvermere. The appropriateness of requiring a featured surface should be reviewed by a heritage advisor and the condition amended if required.

Condition 30(a) - was not agreed to by the applicant. I accept the evidence of Mr McLaren that the need to upgrade the intersection of Blaxland Road and Lake Street does not result from the additional demands of this development. The occasional use of the intersection for functions will not place additional stress on the intersection which already experiences greater and more frequent use from cars using the school. If the intersection requires upgrading it is largely the result of its current usage and not as a result of the development. I also do not accept that its use by drivers unfamiliar with the area would warrant the upgrade. This condition should be deleted.

Condition 30(b) -

see comments on condition 28.

Impact on amenity – noise

74 Noise was one of the main concerns of the residents. Mrs Shellard, the owner of Coronel, was concerned about noise from people using the gazebo and the eastern terrace, from the new guestrooms, from guests accessing their cars parked in Lake Street and increased traffic in this street.

75 Mr Macqueen, on behalf of three other owners in Angel Street (Blaxland Road) raised concerns about the assumptions upon which the acoustical studies were made. He considered that it had not been demonstrated that the proposed acoustical fence would limit noise to the extent stated as the houses were closer than estimated and it had not been established whether the proposed acoustic fence was within the “line of sight”.

76 Mr Macqueen stated that “even normal conversations between two people on the verandah are often quite audible on my back verandah” and that it would unrealistic to prevent to prevent the increased noise of people laughing and shouting from being audible.

77 Mr Challis in his report dated 9 May 2003 and subsequent report of 13 January 2004 examined the existing noise conditions, the likely impact of the proposal on surrounding properties and recommended mitigating measures.

78 In relation to Coronel, Mr Challis stated that:

Coronel is currently subject to a significant degree of vehicular noise impact, as a result of its elevated position overlooking the bend in Blaxland Road. The noise generated by traffic on Blaxland Road is significant. The Coronel property is approximately 2m from the eastern boundary of Silvermere at its closest point, and as a consequence, specific precautions will be required to ensure that Coronel's acoustic amenity is not further degraded, and that the residents are protected.

79 Mr Challis reviewed the proposal and was satisfied that the measures such as limiting access to the eastern terrace, the masonry construction of the guestrooms, including a noise barrier wall, and the 15m distance of the closest guestroom from Coronel would ensure that there were no adverse impacts.

80 To the north, the three closest properties across Blaxland Road, (Angel Street) are over 60m distance from Silvermere and are subject to traffic noise from Blaxland Road until at least 10pm. In Mr Challis opinion the proposal and with the instillation of the acoustic fence on the northern boundary would ensure that the functions, including sound amplification systems, are virtually inaudible from these properties. The condition of approval restricts amplified music on the outdoor terrace and proposes that music inside be from an in house sound system.

81 The two properties to the west are setback from the common boundary with Silvermere and would be unaffected by the proposed functions and guesthouse use. These properties would experience increased noise from cars using the new western driveway. Mr Challis considered this noise to be acceptable and the owners did not object to the proposal or wish noise barriers along the boundary.

82 The two closest properties to the south are some 70m from Silvermere and would be unaffected by the activities within the grounds. In Mr Challis opinion, these properties would also not be impacted upon by cars using Lake Street. As discussed above, there is the potential for No 4 Lake Street and Coronel to be impacted by the noise of patrons accessing their cars if parked on the street. Mr Challis recommends that departing guest be escorted to their car. I do not accept that this is realistic and have restricted numbers to prevent the need for on street parking by guests.

83 Mr Challis’s studies and the submissions of the residents were reviewed and accepted by Mr Cooper. These experts provided a joint statement which stated that the:

acoustic criteria for functions was in accordance with the LAB noise criteria and the intrusive noise goal from the EPA industrial Noise Policy, with intermittent noise events at night to achieve compliance with the EPA Sleep Arousal criterion of background noise + 15 dB(A) at bedroom windows.

84 They agreed that the standard could be met provided noise control measures were included in the proposed development. These include: acoustic walls to the new guest rooms; an acoustic fence along the northern boundary; restricting access to the eastern terrace and not permitting amplified music outside.

85 In the absence of other expert evidence I accept the conclusions of the noise experts. The draft conditions include specific conditions based on the recommendations of the joint report. The conditions also require implementation of the recommendations in the Challis reports.

86 However, to ensure that the conditions are easily understood and able to be enforced these recommendations should be explicitly stated in the draft conditions, if they have not already been included into amended plans. The conditions should include the agreed noise criteria (folio 231 of exhibit 4) and the requirement to monitor noise at the boundary fence (folio 599 of exhibit 4).

87 With the measures agreed by the noise experts incorporated into appropriate conditions I am satisfied that the proposal will not have an adverse impact on residential amenity. Without strict controls and management, the function use could result in noise impacts. However, the limited number of functions, their small size, early finishing time, on site parking and the proposed noise measures, has reduced this potential impact. When balanced against the heritage issues associated with this proposal I find the proposed use to be acceptable.

Impact on amenity – privacy

88 The main privacy concern was overlooking of Coronel from the eastern terrace, the gazebo and the new guestrooms. Mr Kovacs provided sight lines to demonstrate the potential impact of the proposal.

89 The eastern terrace is landscaped to limit usage and the potential for overlooking. It is also proposed to restrict access to the eastern terrace to function guests, which would further reduce to potential for overlooking. Mr Kovacs and Mr Tully agreed that if these measures where implemented overlooking of Coronel would not occur due to its distance from the boundary and distance from the eastern edge of the terrace.

90 The deletion of the gazebo for heritage reasons will also eliminate any concern of potential overlooking from this structure.

91 The guestrooms and their coutyards are orientated north east, away from the house on the Coronel site. The orientation and the dividing walls between these guestrooms will prevent direct overlooking of the house and the area of garden closest to the house. The existing and proposed planting along the boundary and in the courtyards will further restrict access along the boundary and viewing of the Coronel garden.

92 While the outlook and perception of privacy from Coronel will change. I find that this in not unreasonable given the heritage constraints of the site and the potential for a house to be erected on this separate allotment.

Impact on amenity – character

93 This issues related to the appearance of the fence along Blaxland Road which was required to mitigate noise impacts both to and from Silvermere. Mr Tully considered that the height of the fence would be out of character with the area, particularly as it is raised above the level of the road and there are not many similar examples in the area. Mr Kovacs did not share this opinion. He said that the fence will be behind an existing fence, which is in need of repair and will be screened by an existing Rhododendron hedge that is a significant garden element. Mr Robinson stated that:

The sound barrier proposed for the northern boundary of the site is of some concern because of its potential visual impact as an additional hard element in the garden and its potential to obscure the present glimpses of the house and garden from Blaxland Road through gaps in the rhododendron hedge. It should, however, be recognised that these glimpses unlikely to disappear over time as young seedlings planted in the gaps grow and mature. The benefits in terms of amenity for the occupants of the site and of neighbouring properties needs also to be recognised, and on balance the barrier is not opposed provided that the measures described in paragraph 8.3.5 of the heritage report in relation to the selection of materials, colours and screen plantings are implemented.

94 The measures mentioned above have been incorporated into Drawing DA 26 which would form part of the approval. Condition 22 requires that details be provided to ensure that the hedge is not damaged by the construction of the fence. The fence will be screened and although higher than other fences in the area I find that it will not adversely impact on the character of the area or the significance of Silvermere.

Conclusion

95 For the above reasons and subject to the imposition of conditions, including the requirement that the number of people attending functions be limited to a maximum of 50 people and the deletion of the gazebo, I am satisfied that the proposed development meets the requirements of cl 58(8) in the LEP and cl 76,

96 A complete set of the plans to be approved should be provided to the Court. These should incorporate the changes made by this judgment, Mr Kovacs and the noise experts (including the correct RL of 54.5m for the new guesthouse acoustic barrier) and any consequential amendments.

97 In addition to the conditions discussed above, the following conditions require further clarification or expansion prior to final Orders:

Condition 1 - should include the drawing numbers, including revision number and date.

Condition 5 -

98 Condition 7 – the acoustic measures identified in the in the Challis reports dated 9 March 2003 and 13 January 2004 should be specified in the condition, including the noise criteria (folio 231 of exhibit 4) and requirement to monitor noise levels at the boundary fence (folio 599 of exhibit 4). This is to ensure that the requirements in the consent are clear, enforceable and easily understood without reference to other documents.

Condition 8 – The application seeks approval for one charity function a year. Council opposes this at this stage as no details have been provided. A charity function is an opportunity for the wider community to view the property for a non commercial purpose. The use of the property for this purpose is supported. Condition 6 which requires a functions management plan to be approved by council provides sufficient certainty that the impacts of this isolated event can be controlled. It would be reasonable to allow larger numbers of people and to recognise that the impacts of the charity function would be on street parking in the wider area and potential noise impacts. However, as a once a year event for a community benefit these impacts are acceptable provided measures such as limited hours and adequate notice to nearby residents is given.

Condition 21 –

(i) A complete set of the plans to be approved which incorporate the changes made by this judgement, Mr Kovacs and the noise experts (including the correct RL of 54.5m for the new guesthouse acoustic barrier) and any consequential amendments and an amended car park layout including the allocation of spaces.

(ii) Amendments to the conditions detailed in paragraphs 73 and 97 of this judgement, agreed between the parties.

2. Liberty to restore within two days is granted if the parties do not agree on the amended plans or proposed conditions.

Annelise Tuor

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Citations

Hird v Blue Mountains City Council [2005] NSWLEC 329

Most Recent Citation

Premier Building Group v Hornsby Shire Council [2006] NSWLEC 476

Cases Citing This Decision

1

Premier Building Group v Hornsby Shire Council [2006] NSWLEC 476

Cases Cited

1

Statutory Material Cited

3

Hilley v Blue Mountains Council [2004] NSWLEC 412

CITATION:	Hird v Blue Mountains City Council [2005] NSWLEC 329
PARTIES:	APPLICANT Mr and Mrs Hird RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10832 of 2004
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- alterations additions and adaptive re-use of heritage item Heritage Incentives Clause Whether conservation plan required Impact on heritage significance Whether item most appropriately conserved by the use of the proposed development Impact on residential amenity - traffic and parking noise and privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan 4 Draft Blue Mountains local Environmental Plan 2002
CASES CITED:	Hilley v Blue Mountains Council [2004] NSWLEC 412
DATES OF HEARING:	06 & 07/12/ 2004 and 24/02/2005
DATE OF JUDGMENT:	06/20/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr C Drury SOLICITORS Phillips Fox RESPONDENT Mr A Seton SOLICITORS Marsdens

Used as a private residence	Current 4 rooms plus cottage	Current plus 28 functions	Plus 4 room East Terrace	Plus Gardener’s Lodge
Total Costs ($)	99100	189300	196800	252500	270300
Expected income ($)	0
30% occupancy	76650	113050	173370	189700
30% occupancy – high rental¹	93075	129475	203935	222550
50% occupancy	127750	164150	266350	291900
70% occupancy	178850	215250	358330	394100
50% occupancy – high rental¹	155125	191525	315625	346650