Hirondelle Private Hospital v Willoughby City Council

[2003] NSWLEC 271

>

Land and Environment Court

of New South Wales

CITATION:	Hirondelle Private Hospital v Willoughby City Council [2003] NSWLEC 271
PARTIES:	Applicant: Hirondelle Private Hospital Respondent: Willoughby City Council
FILE NUMBER(S):	10257 of 2002
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Impact on Conservation Area and heritage item Parking and traffic
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995
CASES CITED:
DATES OF HEARING:	25, 26 and 27 June 2003
DATE OF JUDGMENT:	11/07/2003
LEGAL REPRESENTATIVES:	Applicant: Mr C McEwen, barrister instructed by Mallesons Respondent: Mr P Rigg, solicitor Deacons

JUDGMENT:

In the Land and
Environment Court
of New South Wales

10257 of 2002

Commissioner Annelise Tuor

Hirondelle Private Hospital

Applicant

v

Willoughby City Council

Respondent

Judgment

Introduction

1 The appeal is against the refusal by Willoughby City Council (the council) of a development application for alterations and additions to an existing private hospital at 10-16 Wyvern Avenue, Chatswood.

The site and its context

2 The site is L shaped and comprises three allotments, which extend from the southern side of Wyvern Avenue, near Hotham Street through to Vern Lane. It has an area of 3989m2 and a fall of about 5m from Wyvern Avenue to the rear of the site and about 2.6m along Wyvern Avenue from west to east.

3 The site has been used as a private hospital since 1957 and has grown from its original six bed facility to the current 42 beds. It is developed with two former cottages dating from the early 1900s. The cottages are set back from Wyvern Street and connected at the rear by a later addition. These are the main accommodation building and reception area for the hospital. A single storey building, the Rehabilitation Unit, is located at the rear of the site setback off Vern Ave. The hospital also uses 4-6 Hotham Street for administration purposes but these are not included in the site area for the subject proposal.

4 To the east the site adjoins No 6 Wyvern Avenue, a one to two storey dwelling that is a heritage item. To the west is No 18 Wyvern Avenue, a two storey house. Other houses in the area are a mixture of one and two storey Federation and Inter War Bungalows set in landscaped gardens. The site is within the Findlay and Wyvern Avenues, Roseville, Conservation Area.

5 The Pacific Highway is about 150m east of the site where there are larger commercial buildings. The high rise development of Chatswood is visible as a backdrop to the south of the site.

Background

6 A development application (DA 2001/1452) was lodged on 18 December 2002. Council notified the application and 40 objections and a petition were received. Council refused the application under delegated authority on 5 April 2002 and the applicant lodged an appeal.

7 On 17 April 2003 a new application (DA2002/1902) was lodged (the proposal). The hearing dates for the appeal were vacated but the appeal not withdrawn. This application was also notified and Council received 36 objections and one petition. The main concerns raised were that the development was an overdevelopment of the site; it was out of character with the area and would cause unacceptable traffic and noise impacts. A petition in support of the proposal was submitted during the appeal.

8 Council refused the proposal on 21 May 2003. The reasons for refusal formed the basis of the Statement of Issues before the court.

The Proposal

9 The proposal is for alterations and additions to the existing private hospital to accommodate an additional 10 beds and ancillary facilities, including reorganisation of the existing parking layout and associated landscaping. The hospital is currently licensed for 42 beds and has a floor area of 904 m2 all on ground level. The proposal will increase the floor area to 1492m2 (972m2 on the ground floor and 520m2 on the new first floor). In addition, the existing hospital has 602m2 of floor area in the building known as the Rehabilitation Unit at the rear of the site. No changes are proposed to this building except the addition of four stack parking spaces off Vern Lane for Rehabilitation Unit staff.

10 The hospital currently has approval for 22 car parking spaces, although 24 or 25 spaces are currently used on the site. A number of these are stack parking spaces. The proposal will provide 33 spaces a number of which will be stack parking.

Statutory framework

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11 Under the Willoughby Local Environmental Plan 1995 (LEP 1995) the site is zoned Special Uses 5(a) - Hospital. The surrounding area, including 4-6 Hotham Street, is zoned Residential 2(a) (Residential A). Under Clause 26B(c) the use of 4-6 Hotham Avenue for hospital administration is permissible with consent.

12 There are no specific development standards in LEP 1995 applicable to the Special Uses 5(a) zone. The site is within the Findlay and Wyvern Avenues, Roseville Conservation Area (the Conservation Area) and Part 7 - Heritage and Conservation Special Provisions of LEP 1995 apply. In particular, under cl 57(3) the extent to which the proposed development would affect the heritage significance of the conservation area must be considered. Clause 57(4) requires an assessment of whether the development is consistent with characteristics of the locality such as roof pitch and form, and the size, shape and proportion of openings for windows and doors. Under Clause 57(5) the compatibility of development involving a building in a conservation area must be assessed against:

(a) the heritage and integrity of the building; and
(b) the heritage significance of the conservation area, including the character of the streetscape and the scale, setbacks and horticultural features of nearby existing buildings and works in the conservation area.

13 The site adjoins a heritage item at No 6 Wyvern Avenue. Clause 58 requires that the effect of the development on the heritage significance of the item and its setting must be assessed.

14 Development Control Plan 19 – Heritage and Conservation (DCP 19) is also relevant. DCP 19 provides planning and design principles that generally apply to development within conservation areas and to heritage items as well as specific controls for each conservation area.

15 Development Control Plan No 2 – Transport Requirements for Development (DCP 2) specifies the parking requirements for a hospital use.

Issues

16 The Statement of Issues before the Court contains 11 issues. These can be categorised as follows:

(a) whether the proposal will have an acceptable impact on the heritage significance of the conservation area and the adjoining heritage item, No 6 Wyvern Avenue.
(b) Whether the proposed on site parking arrangements are inadequate and will result in adverse traffic conditions in the street.

17 The following experts gave evidence these issues:

• For the council
  Ms L de Carvalho, town planner
  Ms J Hill, heritage architect
  Mr A Lehmann, traffic planner

• For the applicant
  Mr A Rowan, planner and heritage consultant
  Mr D Taylor, landscape architect
  Mr C Hutcheson, traffic engineer

18 The Court also heard evidence from the following residents:

Mr RJ Charlton, 6 Wyvern Avenue, Chatswood
Mrs S M Dietze, 18 Wyvern Avenue, Chatswood
Mr P T Lark, 23 Wyvern Ave, Chatswood

Impact on the conservation area and the heritage item

19 The main area of difference between the experts was whether the proposal adversely impacted upon the character of the conservation area. In Ms Hill’s opinion the second storey addition, the roof form, and the link between the buildings resulted in a development that was out of character with the area. Mr Rowan considered that while the building was not a dwelling it maintained a domestic scale that was compatible with the character of the conservation area.

20 These differences of opinion can be summarised into three main areas of disagreement being: the existing character of the conservation area; the applicability of the existing character area guidelines in DCP 19; and the impact of the development on the conservation area.

21 In relation to the existing character of the conservation area the Statement of Significance in DCP 19 states that:

The area possesses a streetscape integrity due to the development during one period and the excellent state of preservation of the houses and their garden settings. The area has a uniformity of housing style including form, materials and detailing that gives the area a harmonious appearance. The predominance of the 1920’s bungalow type illustrates the important influence of American housing ideals and styles on Australia.

22 Ms Hill undertook a further assessment of cultural significance for the area and prepared a statement of significance that was similar to that in the DCP. In her opinion the area was characterised by relatively intact single storey Federation or inter war bungalows in landscaped gardens. Where there are two storey houses they have generous side setbacks “such that built form is balanced in its landscaped setting”.

23 In Mr Rowan’s opinion the area in the vicinity of the site was characterised by two storey dwellings. In particular, the adjoining houses at Nos 6 and 18 Wyvern Ave and opposite at Nos 5-7 Wyvern Ave were two storeys. Ms Hill did not agree that No 6 was two storeys. Where it adjoins the site it is single storey and as the land slopes towards the east there is an undercroft area, which under the definition of the LEP is a storey, but appears from the street as 1 to 1.5 storeys. Nor did she agree that the number of two storey buildings in the immediate vicinity resulted in a two storey character. On the contrary she considered that the northern side of Wyvern Avenue to be consistent in its single storey character, with the “Arts and Crafts” two storey semi at Nos 5-7 Wyvern Avenue being an unusual feature in the area.

24 With regard to the applicability of the guidelines in DCP 19, both experts agreed that the hospital was within the conservation area and that the guidelines did not relate specifically to non residential uses. Ms Hill’s opinion was that the guidelines were relevant as they reflect the existing development within the area and, if implemented in new development, would maintain the character of the conservation area. While the guidelines do not specifically deal with the hospital they are relevant as it is the “setting, scale and mass of development that the DCP is concerned with, not the use”. In her opinion, even though the proposal is for a non residential use it should meet the objectives of these guidelines while not necessarily complying with the numerical controls.

25 Mr Rowan considered that the use was an important consideration in assessing the relevance of the DCP guidelines and the impact of the proposal on the significance of the conservation area. In his opinion the hospital served a different function to other buildings in the area. This function necessitated a “larger building which should not be required to appear as a dwelling but should be of domestic scale and be compatible with the dwellings in the conservation area”.

26 The experts agreed that the key control was whether the development satisfied the requirements of cl 57 in LEP 1995. In answering this question, Ms Hill’s opinion was that 10-16 Wyvern Avenue was originally two allotments with separate houses. These have been altered over the years to accommodate their use as a hospital but maintain their domestic scale and contribute to the conservation area. She considered that the proposal would not maintain the character of the conservation area for the reasons summarised as follows:

• It is two to three storeys where the existing character of the area is predominantly single storey. The DCP guidelines encourage single storey development with a second storey in the roof to limit the bulk of development and maintain the character of the area, with two storey buildings being appropriate on larger sites where there is opportunity for large landscaped setbacks.
• The existing floor space ratio (FSR) of development in the conservation area is in the order of 0.3:1. The DCP permits a FSR of 0.4:1. The DCP states that “this figure is a guideline rather than a prescription reflecting the existing pattern of development and providing for some additional floor area without compromising the character of the conservation area”. The hospital has an existing FSR of 0.38:1. The proposal will increase this to 0.52:1. This FSR could be accommodated on the site but the distribution of floor space in the proposal results in a bulk and mass of development out of character with the conservation area.
• The additional storey is a large unbroken roof form, which extends approximately 44m, with a 14m length of ridge. The existing pattern of ridge lengths in the area is 5-7m.
• The two storey link results in the development reading as one building mass rather than as two separate buildings with a recessive link. This results in the development no longer being domestic in scale and compatible with the conservation area.
• The site currently does not provide adequate landscaping. While the proposal improves the front garden landscaping and arrangement of parking it is inconsistent with DCP 19 in that the parking is forward of the building line. It also reduces the amount of overall landscaped area by removing planting in the driveway which softens the development and screens it from No 18 Wyvern Avenue.
• The detailing, particularly the fenestration of the proposed second storey and the entrance area is inconsistent with the conservation area. Although this could be dealt with by a condition.

27 Ms de Carvalho and the residents held similar opinions to Ms Hill. Whereas Mr Rowan held the contrary view that the proposal was compatible with the conservation area for the reasons that can be summarised as follows:

• Adjoining and nearby development is two storey. Therefore it is appropriate to have two storeys in this location. The DCP recognises that two storey is appropriate on larger sites, which this is.
• “The first floor addition is of a scale and height compatible with other two storey structures located in the street, though much further back in the streetscape. The presence of the former cottage wings in the foreground will enable this addition to appear recessive in the streetscape”.
• The front of the two dwellings is being retained and the additional storey is set back from these dwellings and from the street. The link between the former dwellings is also being softened by landscaping. Therefore the dwellings will still be able to be read as separate elements and the building will not read as one mass.
• The hipped roof reflects the profile of rooves in the area. It is “a simple, recessive form that does not compete with the gable roof form of the dwellings”.
• The increase in floor space is acceptable as the building maintains its domestic scale and the character of dwellings in landscaped settings. Larger sites can also accommodate higher FSRs as there is no setback required between the buildings on the site.
• The overall mass of the development is visible in the street from limited vantage points and against the backdrop of the Chatswood city centre.
• The proposed landscape treatment in the front is an improvement upon what is currently there, “the quantum reduces but the quality improves”. Even though there is parking in the front garden this will be not be used often, will be largely screened and is will be surfaced with permeable paving. The proposal provides 17% of the site as landscaped area where the DCP requires 35%. However, the character of the area of buildings in landscaped settings is maintained.

28 The experts also disagreed on the impact of the proposal on the heritage significance of adjoining heritage item at No 6 Wyvern Ave. Ms Hill considered that the bulk of the development was placed along the eastern boundary adjoining the heritage item. Due to the slope of the land the addition along this boundary resulted in technically a three storey building within 1.7 to 2.8m of the boundary with a wall height ranging from about 6.8 to 7.3m and a hip roof above. Ms Hill did not consider that the proposed landscaping along the boundary would mitigate the bulk of the development. Nor did she consider that the setback of the heritage item from its boundary, of some 6.5 to 7.5m, justified the proposed additional storey being closer to its boundary. Ms Hill considered that the development would be “highly visible from the heritage item setting particularly at the driveway entrance and from the rear open space” and would have an unacceptable impact on the setting of the heritage item and its private outdoor space.

29 Mr RJ Charlton, the owner of 6 Wyvern Avenue, also considered that the bulk of the development had an unacceptable impact on the heritage significance and use of his property. In his opinion, the bulk of the development would be emphasised by the slope of the land to the east and would result in his property, particularly the courtyard at the rear, being at a lower level to the hospital. While he accepted that his house and its garden was orientated to the north east these areas were not private, being on a corner, and experiencing noise from the streets and the highway. The area of open space that his family used the most was to the rear of his house as it was private. It was this area, which in his opinion would be impacted upon by the bulk of the development, overlooking and loss of light. He noted that the two storey rear additions to his property were set below ground level to maintain the single storey appearance of his house from the street.

30 Mr Rowan held the contrary view that the proposed additional storey was well set back from the street and would not be visible in relation to No 6 from the street. As such it would not block views to the heritage item or be seen as a backdrop to the item. He also held the opinion that the item was orientated away from the subject site and its main areas of open space were to its north east. The screening along the common boundary would also screen the development from view and only oblique views of the development would be available from the heritage item. For these reasons the addition does not impact on the setting of the heritage item.

31 I accept the evidence of Ms Hill that the proposal will have an adverse affect on the heritage significance of the conservation area and therefore does not satisfy cl 57 of LEP1995 and on this basis must fail.

32 The site is zoned for hospital purposes. The parties supported its use for this purpose and recognised that the hospital provided an important community facility. However, I accept Mr McEwen’s submission that this zoning and support for the use does not mean that there should be a dispensation or concession with the requirement for the development to be compatible with the character of the conservation area. While the parties agreed that compliance with the numerical controls in the DCP was not required they disagreed on whether the development achieved the objective of these controls for infill development to maintain the character and thereby the significance of the conservation area.

33 The character of the conservation area is single storey bungalows and while there are two storey buildings such as No 18 Wyvern Avenue, these are set within landscaped gardens with generous side setbacks. The Arts and Crafts semi at Nos 5-7 Wyvern Avenue is an unusual building which contributes to the conservation area by the strength of its design and is not typical of other two storey buildings in the area, nor should it be used as a model for two storey development. No 6 Wyvern Avenue, while technically a two storey building, does not appear so from the street, again it is within a generous landscaped setting. Two storey buildings in the area are also vertical in their proportions with a smaller horizontal dimension to the vertical height. While I do not agree that development on this site could not incorporate a two storey element, I accept that the proposed development is not appropriate.

34 The proposal has attempted to respond to the conservation area by placing the two storey element some distance from the street and retaining the single storey elements of the former cottages closest to the street. However, this still results in a development that will read as excessively bulky in the streetscape. Particularly the length of the two storey building that follows the street and the mass of the hipped roof. I accept Ms Hill’s evidence that the proposal will read as one large building and be of a bulk and scale unlike other two storey buildings in the conservation area. It will also not be set in extensive landscaped gardens. The hospital already provides considerably less landscaped area than other large buildings in the area and the proposal will reduce this even further.

35 I do not accept that the proposal will only be visible from limited view points along the street. Even, if this were the case it is no different to how other properties are viewed in the street and this does not reduce the importance of their contribution to the area. The site occupies a considerable length of the southern side of Wyvern Avenue within the conservation area. Development of this site will have an impact on both sides of the street and will be visible along the street, particularly due to the nature of the driveway and the car parking to the front of the site.

36 I accept that the use of the site as a hospital places different functional constraints on the proposal, however, I do not accept that a development that better responds to the conservation area could not be achieved on the site.

37 In relation to the impact on the heritage item, the proposed development will impact on the amenity and significance of this property, particularly when viewed from within the property itself. However, because the additional storey is set back from the street it will not obscure or be read directly in relation to the heritage item from the street. Its impact on the significance of the item is therefore acceptable.

Car parking and traffic

38 The main concern of the residents was that the existing parking arrangements result in the street being used for parking. The residents considered that the existing parking spaces were difficult to access because of the number of stack parking spaces and the location of visitor parking at the rear of the site, at the end of the long driveway. This meant that visitors, particularly elderly visitors, preferred to park on the street even if spaces were available. Despite the parking restrictions, it is sometimes difficult to park in the street and there is conflict caused by cars being parked across or close to driveways.

39 The residents were concerned that an increase in the floor area of the hospital by 25% would increase this conflict. While they accepted that there would be an increase in the number of spaces to be provided, the residents did not believe that there would be an improvement in the traffic conditions due to the increased demand for spaces and the unsatisfactory arrangement of the proposed spaces. They were also concerned that the narrow nature of Wyvern Avenue (7.3m wide from kerb to kerb) and the location of the hospital driveway close to the crest of the road resulted in un-safe traffic conditions.

40 The experts agreed that the impacts and potential conflicts of the current parking arrangements at the hospital were minimised by the strict management of the spaces. These management practices include altering the staff change over period so that it does not coincide with visiting hours and co-ordination of the stack parking spaces used by staff. The main area of disagreement between the experts was whether the proposal would improve the parking on the site and lesson its impact on residential amenity.

41 Mr Lehmann agreed with the residents concerns. In his opinion the current parking arrangements on the site were unsatisfactory and resulted in adverse impacts on the surrounding residents. He stated that “The existing parking situation on site is substandard. Most of the parking spaces do not meet the requirements of the Australian Standard 2890. There are many stacked parking spaces, there are substandard manoeuvring areas and the service delivery area is also below standard”.

42 Mr Lehmann stated that numbers of visitors do not currently use the visitor spaces, even if available, but prefer to park on the street which impacts on the amenity of local residents. He supported this opinion by reference to the report prepared by Traffic and Transport Planning Associates (December 2002) as part of the Statement of Environmental Effects for the proposal.

43 Mr Lehmann did not raise issue that the number of spaces proposed did not comply with the requirements of DCP 2 as the existing hospital did not comply with the DCP and the site imposed constraints on compliance. He also recognised that the proposal would increase the number of spaces required under the DCP for the additional floor space. The DCP requires 4 extra spaces and the proposal provides an additional 11 spaces above the number approved for the site or an additional 8-9 spaces above the spaces currently on the site (ie 2-3 existing spaces not approved).

44 In Mr Lehmann’s opinion while the number of spaces increased the proposed parking arrangements were unsatisfactory. His main concerns were:

• The number of stack parking spaces (47% where the DCP permits 25%)
• Pedestrian and vehicle conflict at the rear of the site where service vehicles, ambulances, visitor parking and stack staff parking would manoeuvre across defined pedestrian access routes between the rehabilitation unit and the patient wards.
• Manoeuvring and reversing of cars from the staff parking areas at the rear of site into pedestrian and service area.
• The removal of the medium strip and separate access and egress along the driveway. The likelihood that cars will reverse along the driveway and conflict with pedestrians.
• The extent to which the parking is reliant on effective management to minimise impacts.
• Visitor parking at the rear of the site is unlikely to be used.
• Increase in overflow parking in the street and resultant impact on residential amenity.

45 Mr Hutcheson held the contrary view that the proposed increase in parking spaces and their arrangement would improve the conditions both on and off the site. For the following reasons:

• The number of spaces to be provided for the increase in floor space was above that required by the DCP.
• Stack parking spaces were to be used by staff and would be managed by the hospital to minimise conflict, as is currently the case.
• The hospital, even with the increase in floor space, generates a relatively small amount of traffic and demand for parking which can be met with the arrangements proposed on site.
• Manoeuvring and reversing are currently managed on site with no adverse impact. These arrangements will continue.
• The changes to the driveway are acceptable because of the low traffic volumes. Cars can pass each other and pedestrians using the driveway
• Parking in the street by people using the hospital is currently limited and will not increase. There is no reason that visitors will not use the visitor parking at the rear of the site and will park in the street.
• The management of parking on site has minimised conflict between staff, visitors service vehicles, ambulances and pedestrians. These arrangements will continue and are part of a management plan required as a proposed condition of consent

46 The existing parking arrangements on site are not adequate and work as best they can, largely through the diligence of the management of the hospital. I accept that despite these efforts there are impacts on residential amenity. While the residents accept the current situation it is reasonable that the situation should not be worsened by the increase in the size of the hospital. The main impact arises from visitors using the street instead of the parking provided on site. The existing visitor parking is five spaces in the front and four in the rear, a total of 9 spaces. The proposal will provide five spaces and one disabled parking space in the front, three along the driveway and five at the rear, a total of 14 spaces. It was also proposed that the three spaces allocated for Doctor’s would be available for use by visitor’s during certain times. I am satisfied that this arrangement will not worsen the impact of parking off the site on the street.

47 The remaining spaces are stack parking for staff. Those with access off Wyvern Ave are in a similar arrangement to what is now on the site, with one less space provided. Four additional spaces are provided off Vern Lane for use by the Rehabilitation Unit Staff. The location of the column supporting the proposed second storey is likely to worsen the accessibility for the parking spaces at the south eastern part of the site. I consider the access arrangements for staff parking, particularly the manoeuvring and reversing required, to be less than satisfactory, but I accept that this is the current arrangement and that the proposal is not likely to significantly worsen this situation. While I consider that a proposal which increases the floor area by 25% should also endeavour to improve its existing unsatisfactory parking arrangements I accept that these are not worsened and of itself is not a grounds for refusal.

48 Concern was also raised about the impact of the proposed parking spaces off Vern Lane on the existing iron bark tree. Mr Taylor’s opinion was that while excavation would occur in this area, the existing grades would be maintained around the tree. The use of concrete driveway strips would also minimise any impact on this tree. Council did not provide any expert evidence on the impact on the tree but questioned the change of levels within the drip line of the tree and referred to the report of He Tree Masters Pty Ltd as part of the Statement of Environmental Effects that stated that work should not occur within the drip line of the tree. I am satisfied that the tree would be able to be retained provided adequate measures such as hand digging and root mapping were undertaken. Where the application to be approved, a condition was proposed that required these measures be submitted for approval.

Conclusion

49 For the reasons discussed above the proposed development is likely to have an adverse impact on the heritage significance of the conservation area. It therefore does not comply with Clause 57 of LEP 1995 and must fail.

Orders

The orders of the Court are:

1. The appeal is dismissed
2. Development application No DA2002/1902 for alterations and additions to the existing private hospital at Lot A DP 399242, Lot C DP 326197 and Lot Y DP 400836, known as 10 to 16 Wyvern Avenue, Chatswood, is determined by refusal.
3. The exhibits may be returned.

____________________
Annelise Tuor
Commissioner of the Court