Howe Architects Pty Ltd v Ku-ring-gai Council

[2021] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:

Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233

Hearing dates:

19 and 22-24 February 2021

Date of orders:

11 May 2021

Decision date:

11 May 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Orders of the Court are:

(1) The applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E.
(2) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.
(3) The appeal is dismissed.
(4) Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking at 2 Nulla Nulla Street, Turramurra, is refused.
(5) The Exhibits, other than Exhibits 1 and 2, are returned.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling and construction of a residential flat building – prohibited development in the zone – local heritage item – application relies on the heritage incentive clause for permissibility – the heritage item is the dwelling – the land referred to in the heritage incentive clause is the cadastral lot identified by Schedule 5 to Ku-ring-gai Local Environmental Plan (Local Centres) 2012 – the proposed development would adversely affect the heritage significance of the heritage item – the proposed development would have a significant adverse effect on the amenity of the surrounding area – the development standards in the Ku-ring-gai Local Environmental Plan 2012 apply to the proposed development – exceedance of the height of buildings development standard – the environmental planning grounds identified by the applicant in the written request are not sufficient to justify the exceedance of the height of buildings development standard

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.46, 8.7, 8.15

Heritage Act 1977 ss 4, 57

Interpretation Act 1987 ss 6, 9, 11

Ku-ring-gai Local Environmental Plan (Local Centres) 2012 cll 1.7, 4.3, 4.6, 5.10, 6.2

Land and Environment Court Act 1979 ss 34, 39

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development cll 4, 5, 28

Cases Cited:

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Fox v North Sydney Council [2020] NSWLEC 1056

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; [2005] NSWLEC 152

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

Land and Environment Court of New South Wales, Practice Note Class 1 Development Appeals, (2018)

The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance, 2013

Category:

Principal judgment

Parties:

Howe Architects Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
C Novak (Respondent)

Solicitors:
Holding Redlich Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2020/165298

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking (the proposal), at 2 Nulla Nulla Street, Turramurra (the site), by Ku-ring-gai Council (the Council).

2. The appeal was subject to conciliation on 3 August 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 16 December 2020 for the applicant to amend the application to rely on an amended proposal, subject to an order for the applicant to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act.

Conduct of the hearing

4. The matter was allocated four days for hearing. The applicant requested, on the first day of the hearing, that a direction be given for the parties’ planning and urban design experts to further confer in relation to a number of possible amendments to the proposal which were raised, but not resolved, in the experts’ joint report (Ex 7), including the deletion of the proposed communal open space on the roof terrace (par 18 of Ex 7); the setback of the proposed residential flat building from the western boundary (pars 48, 65 and 68 of Ex 7); the separation distance between the retained fabric of the existing house and the proposed residential flat building (pars 76 and 77 of Ex 7); an appropriate building envelope for the proposed residential flat building (par 78 of Ex 7); the removal of car spaces in the proposed basement to increase the deep soil area on the site (par 85 of Ex 7) and the location and deep soil area in the area proposed as communal open space (par 94 of Ex 7). The Council opposed the applicant’s application, submitting that there was no need for further joint conferencing because the joint report was abundantly clear, and significant and detailed changes would be required to address the Council’s contentions.

5. The planning and urban design experts conferred on 10, 11 and 15 February 2021 (p 2 of Ex 7) and the experts’ joint report (Ex 7) was filed on 16 February 2021, three days before the commencement of the hearing. There are a number of references in the experts’ joint report to sketches and additional information being provided by the applicant’s experts (pp 2 and 3, and pars 18, 65 and 101 of Ex 7), as well as agreements between the experts to amendments that would resolve discrete issues and amendments suggested by the Council’s urban design expert that would resolve discrete issues (pars 48, 76, 78, 85, 94 of Ex 7). Those agreements and suggestions, on the evidence of the Council’s urban designer, could not be confirmed with confidence on the basis of the material before the experts (par 65 of Ex 7). Due to the late filing of the planning and urban design experts’ joint report, the applicant had little time to further explore and act on those agreed and suggested amendments to the proposal. For this reason, a direction was given for the experts to further confer on these issues and the experts held a joint conference during the afternoon of the first day of the hearing and prepared a brief supplementary joint report (Ex 12).

6. The hearing was adjourned at the commencement of the second day until the following day, at the request of the applicant, to allow the applicant time to prepare an amended proposal that reflected some of the agreements reached by the experts in Ex 12. The applicant outlined the proposed amendments to the documents, including providing a minimum 10m setback to the western boundary, deleting the communal open space on the roof terrace, changing the basement to increase the deep soil area in the north-eastern corner of the site, changing the western façade of the residential flat building and changing the internal spatial planning of the 7 units. The adjournment was strongly opposed by the Council on the basis that the amendment of the proposal was merely speculative and likely to lead to the vacation of the hearing days. The adjournment was granted because the amended proposal, on the applicant’s submission, would respond to the planning and urban design experts’ evidence in Exhibits 7 and 12 and address contentions raised by the Council, in order to narrow the issues between the parties. Given all of the circumstances of the appeal, the adjournment was the most effective means of facilitating the just, quick and cheap resolution of some of the real issues in the proceedings. The applicant was directed to provide the amended documents to the Council by 2pm on the second day of the hearing.

7. The parties were directed to provide a timetable for the conduct of the final two days of the hearing to ensure that the amendment of the application did not result in an adjournment of the hearing and the parties each provided a timetable. The applicant provided the amended documents to the Council during the second day of the hearing, not by 2pm as directed, but across the day in a series of communications, culminating in the final document being provided late in the evening. The Council submitted at the commencement of the third day of the hearing that, despite the unreasonable circumstance of the applicant not complying with the direction to provide the amended documents by 2pm the previous day, the Council’s experts had worked hard overnight and had reviewed the amended documents and were able to address the Court on the amended proposal.

8. Leave was granted by the Court on the third day of the hearing for the applicant to amend the application to rely on an amended proposal (Ex E), subject to an order for the applicant to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act.

9. The amended proposal (Ex E) includes the following changes:

• A reduction in the area of the basement of the residential flat building on the eastern and western sides, including relocating the SUV turning bay in the north-eastern corner of the basement to provide an area of deep soil in the north-eastern corner of the site;

• A reduction in the building envelope of the residential flat building on the first, second, third and fourth floors to provide a minimum 10m setback from the western boundary;

• A reduction in the building envelope in the north-eastern corner of the residential flat building on the first and fourth floors; and

• Changes to the screening of windows and balconies on the western elevation of the residential flat building;

• A reduction in the height of the lift overrun from RL 182.68 (Ex C, f 394) to RL 180.78 (Ex E, DA 2.100_06) and deletion of the communal open space on the roof of the residential flat building and replacement with pebbles and solar panels. The overall height of the roof parapet, at RL 179.98, remains.

Issues

10. The Council’s contentions in the Statement of Facts and Contentions filed 2 February 2021 (Ex 1) can be summarised as:

• The proposed development is prohibited in the R3 Medium Density Residential Zone and consent must not be granted;

• The proposed development has an adverse impact on the heritage significance of the local heritage item;

• The application makes inappropriate use of cl 5.10(10) of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) which seeks to incentivise the conservation of heritage items;

• The proposed building height is non-compliant with the height of buildings development standard and results in bulk impacts to the existing dwelling and adjoining properties;

• The proposed residential flat building has inadequate setbacks;

• The proposed development has inadequate building separation within the development;

• The proposed development lacks the provision of adequate deep soil to support substantial trees;

• The proposed area of communal open space is inadequate;

• The proposed areas of private open space for several of the units are inappropriately located;

• The proposed area of private open space for the existing dwelling is inadequate;

• The proposed development results in excessive site coverage;

• The design of the top storey of the proposed development is unsatisfactory;

• The proposed development offers poor amenity to future residents;

• The proposed development fails to retain significant existing trees on the site;

• The proposed external finishes are unsatisfactory;

• The proposed development is not in the public interest;

• The application does not demonstrate that adequate ceiling heights are provided, and a condition could be imposed to ensure compliance with this requirement;

• A detailed Construction Traffic Management Plan is required, and a condition could be imposed to ensure compliance with this requirement;

• There is insufficient information included in the development application relating to the partial demolition of the existing dwelling;

• The proposed development fails to provide water sensitive urban design measures to satisfy cl 6.2 of LEP 2012 and Section C, Part 24 of the Ku-ring-gai Local Centres Development Control Plan (DCP);

• There is insufficient information included in the development application to demonstrate the carpark is compliant;

• There is insufficient information included in the development application to enable assessment of aspects of the proposed landscaping;

• There is insufficient information included in the architectural plans;

• There is insufficient detail in the acoustic report;

• The arborist’s report does not sufficiently assess all existing trees located on the site;

• The BASIX certificate is inconsistent with the architectural plans;

• The site analysis is inadequate;

• The proposed development does not satisfy the State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) design principles;

• The development application does not include a Design Verification Certificate relating to the amended proposal.

11. The applicant responded to the contentions raised by the Council in the Statement of Facts and Contentions in Reply filed 7 February 2021 (Ex A).

12. Following leave being granted for the applicant to amend the application and rely on the amended proposal in Ex E, the Council submitted that some particulars of the contentions raised in the Statement of Facts and Contentions (Ex 1) are resolved by the amended proposal and raised new issues. The contentions regarding the insufficiencies of the acoustic and arboriculture reports (contentions 24 and 25, Ex 1); the setback of the proposal to the western boundary (particulars (a) and (c) of contention 5, Ex 1); the proposed communal open space on the rooftop (particulars (a), (b), (c) and (e) of contention 8, Ex 1); the impact of the communal open space on the deep soil available on the ground level (particular (a) of contention 11, Ex 1); the gross floor area of the top storey (particulars (a) and (b) of contention 12, Ex 1) and the car parking in the basement were resolved by the amended proposal (particulars (a) and (b) of contention 21, Ex 1). The Council raised the following new issues regarding the amended proposal:

• Unacceptable privacy impacts on the future occupants of the dwelling due to overlooking from units 5 and 6;

• The car parking for the existing dwelling on the existing driveway in the setback from Turramurra Avenue is unacceptable;

• The amended proposal raises additional stormwater issues;

• The written request to contravene the height of buildings development standard does not adequately address the matters required to be demonstrated by cl 4.6(3) of LEP 2012;

• The documents are incomplete;

• Access between areas of the private open space of the existing dwelling are obstructed by a planting bed; and

• The clothes drying area is removed.

13. It was agreed by the landscaping experts that the final two issues could be easily resolved by amending the landscape plan (Ex E, tab 5).

The site and its context

14. The site is Lot 1 in DP 956335. The site is on the northern corner of Turramurra Avenue and Nulla Nulla Street. The site has a frontage of 42.67m to Turramurra Avenue and 52.43m to Nulla Nulla Street. The site has a total area of 2251m².

15. The site is occupied by an existing Federation style single storey dwelling which includes contemporary extensions to the north and east. There is an existing circular driveway accessed at both ends from Turramurra Avenue, which provides access to the existing garage in a basement at the northern end of the existing dwelling. There is a swimming pool adjacent to the northern boundary and a tennis court adjacent to the eastern boundary.

16. There are residential flat buildings in the vicinity of the site on both sides of Turramurra Avenue. There are detached dwellings in Nulla Nulla Street.

17. Turramurra Avenue falls to the north and Nulla Nulla Street falls to the east to the midpoint of the street and then rises to the cul-de-sac at the end of Nulla Nulla Street.

Background and the proposal

18. The amended proposal (Ex E) includes the following:

• Demolition of parts of the existing dwelling;

• Demolition of the existing tennis court and swimming pool;

• Conservation works to the retained fabric of the existing dwelling;

• Construction of a pavilion addition on the northern side of the existing dwelling to create a six bedroom dwelling with two car parking spaces on the existing driveway;

• Construction of a four storey residential flat building to the east of the existing dwelling, consisting of 7 three-bedroom apartments;

• Construction of a basement with 14 car parking spaces with driveway access adjacent to the northern boundary accessed from Turramurra Avenue;

Planning framework

19. The site is zoned R3 Medium Density Residential (Land Use Table and the Land Zoning Map LZN_007A of LEP 2012) and the objectives of the R3 zone are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide a transition between low density residential housing and higher density forms of development.

20. Residential flat buildings are a prohibited use in the R3 zone.

21. The site is listed as the location of a local heritage item (Item 170, Sch 5 to LEP 2012 and Heritage Map HER_007A of LEP 2012), described as “Dwelling house”. The dwelling was identified by the 1986-7 Heritage Study of Ku-ring-gai as having cultural, architectural and rarity value (inventory sheet attached to Ex 5). The heritage inventory sheet for the heritage item, held by the Council and dated March 2020, includes the following statement of significance for the item (attached to Ex 5):

“2 Nulla Nulla Street, Turramurra, has local historical significance as an example of the type of housing developed as part of the gradual development and subdivision of Turramurra following the opening of the railway station on the North Shore line in 1890. It was built over 1899-1900 in the early and significant phase of development, as the area was transitioning from an agrarian to an increasingly residential precinct.

The property has local aesthetic significance as a representative example of a Federation era residence, exhibiting key characteristics of the period and prevailing styles that are still evident despite modifications. The original form and scale of the building are evident, as are decorative features including timberwork, brickwork arches and tessellated tiling. In addition, a number of fine timber sash windows survive, with multi-coloured glass to upper portions. The Nulla Nulla Street frontage in particular remains intact and readable as that of an early residence in the area.

The property also has local historic associational significance with long-term occupant, John Anderson, a prominent and controversial twentieth century philosopher and educator. Anderson resided at the subject property in Turramurra from the time he immigrated to Australia until his death in 1962. He held tenure as a Professor of Philosophy at the University of Sydney until his retirement in 1958, and the residence housed his substantial library and hosted student guests. His widow and son continued to own and occupy the residence until 1995, creating a significant length and depth of association with the property.”

22. The application is made pursuant to sub-cl 5.10(10) of LEP 2012 (the heritage incentive clause), as follows:

(10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that—

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

23. The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposed development on the heritage significance of the heritage item, before granting consent under cl 5.10 of LEP 2012, at sub-cl (4).

24. The height of buildings development standard for the site is 11.5m (cl 4.3 and the Height of Buildings Map - HOB_007A of LEP 2012). The objectives of the height of buildings development standards are:

(a) to ensure that the height of development is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b) to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c) to enable development with a built form that is compatible with the size of the land to be developed.

25. The floor space ratio (FSR) development standard for the site is 0.8:1 (cl 4.4 and Floor Space Ratio Map - Sheet FSR_007A of LEP 2012). The proposal complies with the FSR development standard.

26. All the properties on both sides of Turramurra Ave to the north and south of the site and within the vicinity of the site (including the adjoining property to the north and the property on the southern corner of Nulla Nulla Street and Turramurra Avenue) are zoned R4 High Density Residential. Those properties are identified on the Height of Buildings Map HOB_007A of LEP 2012 as “Area 1” and cl 4.3(2A) increases the height of buildings development standard for properties identified as Area 1 with a site area between 1800m² and 2400m² to 14.5m.

27. The two properties to the east of the site are zoned R3 Medium Density Residential and may, sometime in the future, be amalgamated and redeveloped.

28. SEPP 65 applies to the proposal at cll 4(1)(a) and 5. In determining a development application for consent to carry out development to which SEPP 65 applies, a consent authority is to take into consideration the Apartment Design Guide (ADG), at cl 28(2)(c). The ADG includes, at Section 3F, design criteria for adequate building separation distances. For a building up to 4 storeys, the separation distance to a shared boundary for habitable rooms and balconies is 6m.

Public submissions

29. Three resident objectors gave evidence via MS Teams. Their concerns can be summarised as:

• The proposed residential flat building is too close to the western boundary;

• The proposed residential flat building will result in overshadowing impacts on the adjoining property to the east;

• The proposal is out of character with the locality and the proposal dominates the site;

• The proposal provides insufficient space for planting;

• The proposal will result in the loss of privacy for apartments on the adjoining property to the north;

• The proposal does not retain the heritage significance of the site; and

• The proposal is using the heritage incentive clause for commercial gain, as the proposal is against the zoning.

Expert evidence

30. The applicant relied on the expert evidence of Lauren Schutz (heritage), Jeff Mead (planning), Rohan Dickson (urban design), Elke Haege (landscaping), David England (stormwater), George Wei (acoustic) and Ken Hollyoak (traffic).

31. The Council relied on the expert evidence of Vanessa Holtham (heritage), Brodee Gregory (planning), Dr Michael Zanardo (urban design), Fiona Ambrosino (landscaping) and Ross Guerrera (engineering).

Heritage

32. The applicant made the following submissions in writing, in relation to the heritage issues:

“The purpose of cl 5.10(10) of the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument) is to open up an “opportunity for flexibility in regard to other provisions of the LEP, with the general ambition of bringing about some kind of actions towards the delivery of heritage conservation benefits.” Clause 5.10(10) falls into “the category of remedial or beneficial provisions which should be construed to afford ‘the fullest relief which the fair meaning of its language will allow” (Fox v North Sydney Council [2020] NSWLEC 1056 at [36]).

Where a beneficial statute is expressed in general terms, so far as possible within the text, decision-makers will construe the legislation to advance and achieve those beneficial purposes - not to frustrate and defeat their attainment (DEM (Australia) Pty Limited v Pittwater Council [2004] NSWCA 434 per McColl J at [48] citing Marks v GIO Australia Holdings Ltd at [124] per Kirby J; Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623 per Kirby J at [384]).

It follows that the interpretation and use of cl 5.10(10) should be approached in a facultative fashion rather than in a restrictive one. Noting that cl 5.10(10) is a provision seeking to facilitate opportunities for development so as to incentivise heritage conservation, a beneficial and facultative interpretation of cl 5.10(10) would be one that is consistent with the general terms of the clause as a self- contained provision. This would have the consequence that in order for development to be approved under cl 5.10(10), an applicant would need to satisfy the consent authority that it has met the relevant pre-conditions identified in the provision, namely:

the development is for a purpose (even though development for that purpose would otherwise not be allowed by the Plan); and the development concerns:

a building that is a heritage item; or

of the land on which a heritage item is erected; or

is on land that is an Aboriginal place of heritage significance; and

the development satisfies requirements (a) to (e) inclusive.

That is, provided an applicant can satisfy the elements identified above, then consent may be granted for the proposed development, notwithstanding any prohibition against the proposed land use, or any non-compliance with a development standard prescribed in the relevant local environmental plan.

The relationship between cl 5.10(10) and the rest of the relevant local environmental plan including cl 4.6 is established by the phrase, “even though development for that purpose would otherwise not be allowed by this Plan.”

First, cl 5.10(10) does not reference and is not subject to compliance with any development standards as a precondition of approval under subclauses (a) to (e).

Secondly, if compliance with development standards was a prerequisite to the grant of approval under cl 5.10(10), then the test for whether a proposed development is capable of approval would extend far beyond those requirements in (a) to (e) and would be far more restrictive.

This is because a development standard is in the nature of a prohibition as, in the absence of a successful written request to vary the standard under the provisions of cl 4.6 of the Standard Instrument, there would be no power for a consent authority or the Court on appeal to grant consent to a development which was non-compliant with a development standard.

The prohibition in cl 4.6 is therefore in conflict with, and in opposition to, the intention of cl 5.10(10) which is concerned with the flexible application of the planning controls to achieve good heritage outcomes.

The assessment of whether there is any significant adverse amenity impact on the surrounding area under cl 5.10(10)(e) may involve a consideration of the types of matters that might ordinarily be raised in support of an argument that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case.

Importantly the question in cl 5.10(10)(e), is whether the development would have “any significant adverse effect on the amenity of the surrounding area”. It therefore imposes a much more general and lower bar to approval than cl 4.6 which adopts as a starting position that the development standard is fixed, unless an applicant can establish as per cl 4.6(3) (Wehbe v Pittwater Council [2007] NSWLEC 827 per Preston CJ at [43]):

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

that there are sufficient environmental planning grounds to justify contravening the development standard.

The fact that a very different standard for satisfaction of impact assessment is proposed in cll 5.10(10)(e) and 4.6 reinforces the intention for cl 5.10(10) to be a self-contained provision.

By way of comparison, the operation of cl 5.10(10) in the context of cl 4.6 can be distinguished readily from the case law regarding clause 4.6 requests in the context of existing uses, see for example Made Property Group Pty Limited v North Sydney Council [2020] NSWLEC 1332. This is because:

cl 5.10(10) is not concerned with the incorporated provisions;

the test is not whether cl 4.6 detracts from or deleteriously impinges on any entitlement of an applicant under the EP&A Act;

the incorporated provisions intend to delineate the scope of a person’s entitlement to carry out an existing use, and are not beneficial and facultative in this regard; and

the incorporated provisions do not introduce a standard of impact assessment that is contrary to the standard imposed in cl 4.6.

Further, the respondent’s submissions reveal a fundamental misunderstanding by the respondent of the applicant’s argument concerning the operation of cl 5.10(10) in the context of cl 4.6. The applicant’s position is not directed at whether a proposal which is non-compliant with a development standard is “development for any purpose”. Rather, the submission is simply that cl 5.10(10) is intended to operate as a standalone provision to facilitate a flexible application of planning controls in order to incentivise heritage conservation, and to the extent that cl 5.10(10) does not call up cl 4.6 and instead imposes a lower standard of “significant adverse impact on amenity”, then the stricter test in clause 4.6 should not apply.

Consistent with the applicant’s submissions concerning the beneficial and facultative nature of cl 5.10(10), the Court should evaluate the Development Application against the requirements of clause 5.10(10), as outlined below.

What is the heritage item?

The proper construction of the listing of the item in schedule 5 of the LEP 2012 is that the listing relates only to the dwelling house and not the whole Lot (See Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62 (Lloyd J) at [31] – [38]). The land on which the building is erected is Lot 1 in DP 956335 otherwise known as 2 Nulla Nulla Street. The current tennis court is not part of the listed item. However, considerations of what curtilage is acceptable are relevant to the assessment of the impact of the development on the dwelling house. The definition of “heritage item” in the LEP 2012 strongly indicates that a listing described as “dwelling house” relates only to that building and not the parcel of land on which it sits. The definition of “heritage item” does not refer to the land upon which an item sits but to the item itself.

The curtilage is not defined by reference to lot boundaries and a curtilage need not be the whole of the land extending to the boundaries of a lot. Further, a reduced curtilage could capture the dwelling house as it existed before the 1997 alterations and additions.

On that basis, the tennis court need not form part of any curtilage and is not in any way significant to understanding the heritage significance of the item.

What is the heritage significance of the item?

The dwelling house is an item of local heritage significance.

Is it “development for any purpose of a building that is a heritage item or of the land on which such a building is erected”?

The decision of the Court of Appeal in Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2009) 99 NSWLR 730 (Stamford Property) is simply not relevant to this Development Application. Stamford Property concerned whether an approval was required under the Heritage Act 1977 (Heritage Act).

The neighbouring owner, Mulpha, objected to an approval for the erection of a modern building and an adjoining and interconnected building listed as an item of State heritage significance under the Heritage Act on the basis that prior approval was required under that Act.

One of the issues in the case was the meaning of “the land on which the building …is situated” under section 57(1)(e) of the Heritage Act.

Ultimately the Court of Appeal (Leeming JA with Emmett AJA agreeing but for different reasons) found that the expression, “the land on which the building …is situated” was a reference to the footprint or physical area on which the building has been erected as distinct from the whole of the relevant cadastral parcel – Leeming JA at [28], [62], [63], [71], [94].

The conclusion was drawn from a number of textual indicators (Leeming JA at [28]) and turns on the careful structure of the definitions used under the Heritage Act (Leeming JA at [62]) and a statutory scheme built on “prohibitions turning on the relationship of the land to the relevant item (or land being the curtilage or site expressed in the listing) …” (Leeming JA at [63)].

In contrast, cl 5.10(10) is a beneficial provision contained in an environmental planning instrument made under the EP&A Act. It is plainly not a prohibition.

In that context a reference to “or of the land on which such a building is erected” in clause 5.10(10) of the KLEP should be taken as a reference to the lot of land on which the item is located (and to which the application relates).

There are a number of reasons for this that allow Stamford Property to be distinguished:

clause 5.10(10) is beneficial and facultative;

the LEP 2012 does not adopt the careful structures identified in the Heritage Act. Rather, the distinction is between heritage items, an Aboriginal object, or a building, work, relic or tree within a heritage conservation area;

though “curtilage” is defined in the KLEP that expression does not appear in the operative provisions of the instrument;

this is not a system built around prohibitions but rather a system built around imposing a requirement for development consent and then authorising, having regard to a heritage conservation management plan (if required) and clause 5.10(10) development for any purpose, even though development for that purpose would otherwise not be allowed by the KLEP if the consent authority was satisfied of the matters in (a)-(e);

the applicant’s submission leads to a conclusion that the distinction is made between the development of the building that is the heritage item and the development of the land on which the heritage item is erected. The Respondent’s analysis gives those alternatives the same meaning;

the respondent’s analysis would lead to the conclusion that there is no requirement for consent imposed under cl 5.10(2)(e) for erecting a building on land unless it was erected wholly within the footprint of the heritage building;

here the heritage item is the dwelling house. The land on which the dwelling house is located is Lot 1 in DP 956335 also known as 2 Nulla Nulla Street, Turramurra;

the Respondent’s analysis should be rejected for those reasons.

What development is proposed for the heritage dwelling?

The proposal is to remove the unsympathetic alterations and additions made to the dwelling in 1997/98. The proposed works would also involve:

removing the addition of skylights to the eastern verandah room and the later addition fence;

carrying out conservation works to the original dwelling, including conservation of the roof, timber openings and glazing, brick masonry walls, stonework, rainwater goods and utilities, the front and side verandah, landscaping, internal ceilings, internal walls, internal openings, internal floors, and fittings; and

reinstating lost elements of the dwelling including reinstating the original hipped roof form, reinstating the third and fourth chimneys to the north and southern parts of the roof opening, reinstatement of the eastern verandah, reinstatement of the timber fence, tuckpointing of the street facing facades and reinstatement of pressed metal ceilings and cornices throughout the original dwelling.

Is the conservation of the heritage item facilitated by the granting of consent – cl 5.10(a)

The evidence is that the dwelling house will be conserved by the granting of development consent. The respondent’s heritage expert, Ms Holtham argued, and it has to be said, her evidence was expressed more as argument or submission than expert opinion, that the tennis court was an essential part of the item and its removal could not be countenanced. The Court would not accept Ms Holtham’s evidence concerning the alleged heritage significance of the tennis court. Her concerns relating to the relationship between the proposed residential flat building and the dwelling house should also not be accepted. The Court would prefer Ms Schutz’s evidence that the proposal provides and retains an acceptable setting for the dwelling within a reduced curtilage.

Development in accordance with an approved heritage management document – cl 5.10(10)(b)

There is no contention that the proposal does not comply with clause 5.10(10)(b) of the KLEP. The Development Application includes a Statement of Heritage Impact, Heritage Management Document and a Conservation Management Plan. Those documents form part of the Development Application and if consent were granted, they would form part of any development consent. Proposed conditions would also require the development to be carried out in accordance with those documents.

What is the necessary conservation work? - cl. 5.10(10)(c)

There is no contention that the proposal does not comply with cl 5.10(10)(c) of the LEP 2012. The Schedule of Conservation Works at 6.0 of the Heritage Management Document identifies all the necessary conservation works. The Heritage Management Document forms part of the Development Application and if consent were granted, would form part of any development consent. Proposed conditions would also require the development to be carried out in accordance with the Heritage Management Document.

Will the Proposed Development adversely affect the heritage significance of the heritage item, including its setting? – cl 5.10(10)(d)

As already observed, Ms Holtham’s position is that the item includes the dwelling house, the tennis court and the vegetation. The Court would find that the original tennis court was not part of the original house and that it came into existing from about 1930.

Further, the images included in the Conservation Management Plan clearly establish that what remained of the original tennis court was wholly removed during the extensive earthworks carried out as part of the 1997/98 works and that it was replaced by a new court with an artificial surface.29 None of the existing vegetation dates from the time the house was constructed. Further, the separation between the dwelling house and the residential flat building is acceptable in heritage terms.

The Court would conclude on the evidence that the residential flat building will not overwhelm the dwelling house from within the Site or from either of Turramurra Avenue or Nulla Nulla Street. Nor does it cause any significant view loss of a portion of the roof from the cul-de-sac of Nulla Nulla Street. From that position, the only portion of the dwelling house that is visible is a small section of its roof and ridgeline.

Any significant adverse effect on the amenity of the surrounding area – cl 5.10(10)(e)

The only amenity impact raised by the Council’s heritage expert is the loss of contributory landscape elements such as mature trees and the tennis court.

As Mr Mead points out, there are no contentions raised by the Council in respect of outlook, views and solar access.

The principal amenity impacts appear to relate to visual bulk and streetscape impacts. Both of these issues are addressed in more detail in the Urban Design and Planning Joint Report and have been satisfactorily addressed by amendments to the original application made largely in response to that joint expert report.”

33. The Council made the following submissions in writing, in relation to the heritage issues:

“Interpretation of cl 5.10

Pursuant to cl 5.10(2) of the LEP, development consent is required to carry out a wide class of ‘development’ (as it is understood within the meaning of the EP&A Act, s 1.5). Notably, this includes demolition or alteration of the exterior of an item (cl 5.10(2)(a)); interior alterations (cl 5.10(2)(b); and erecting a building on land on which a heritage item is located (cl 5.10(e)(i)).

Fundamental to the Court’s task under cl 5.10 is to first identify what is the heritage item and what is its significance.

What is the heritage item?

The Council’s position is that the entirety of the subject site, as defined by its cadastral boundaries, constitutes the heritage item within the meaning of the LEP. See eg Exhibit 1, contention 2, particular (a); contention 3, particular (b). The interpretation that the entirety of the subject site is identified as the heritage item is supported when regard is had to the directions in the Standard Instrument (Local Environmental Plans) Order 2006.

The Standard Instrument (Local Environmental Plans) Order 2006

The Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument Order) prescribes, pursuant to EP&A Act, s 3.20, the form and content of a principal local environmental plan. Clause 6(1) of that order provides as follows:

Requirements or guidance relating to form and content of plan

(1) The standard instrument prescribed by this Order contains directions relating to the form and content of the local environmental plan, which are to be given effect to according to their tenor but which are not to be reproduced in the plan.

…

Relevant to the interpretation of a heritage item under the LEP, the Standard Instrument Order provides the following directions in respect of heritage items:

(a) in respect of cl 5.10: ‘Direction. Heritage items as identified in Schedule 5 must be shown on the Heritage Map’; and

(b) in respect of the definition of ‘heritage item’: ‘Direction. Heritage items must be shown on the Heritage Map’ (Standard Instrument (Local Environmental Plans) Order 2006 – Dictionary: ‘heritage item’)

See also directions in respect of Schedule 5.

The entirety of 2 Nulla Nulla Street, as per its cadastral boundary, is identified on the Heritage Map, Sheet 007A as a (heritage) item, numbered I170.

The proposition that a heritage item may be interpreted as the whole of the lot, having regard to the directors in the Standard Instrument Order, was recognised by Commissioner Tuor in Vision Land Glebe Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1488 at [21]-[22].

The Council’s interpretation is further strengthened when regard is had to the LEP instrument and its accompanying maps as a whole. In particular, there two other instances in the LEP in which a heritage item is identified by reference to only part of its cadastral boundary. They are:

(a) Item I1098 – LEP, Heritage Map, sheet 007C. Described in Schedule 5 as:

Pymble Dwelling house 1 Avon Road Lot   1, DP 583803 Local I1098

(b) Item I6 - LEP, Heritage Map, sheet 014A. Described in Schedule 5 as:

Gordon Gordon Station Railway Group 25 Henry Street Lot   1, DP 1129081 State I6

The applicant’s position is that the subject site is not listed as a heritage item, but that the listing applies only to the ‘dwelling house’. Although both heritage experts agree (in addition to statements in the Heritage Management Documents) that the site is listed as a heritage item: Exhibit 5, p. 3 opinion of Ms Schutz; Exhibit 6 at p. 3, [4].

If the Court accepts the applicant’s argument that the heritage item is only the dwelling then that brings into question whether the applicant satisfies 5.10(10) at all.

What is the heritage significance of the item

Both heritage experts agree that the significance of the heritage item is not limited to the subject dwelling but includes the garden setting and presentation to the streetscape, in addition to an associational relationship with John Anderson: Exhibit 5, pp. 4 – 6 (Ms Holtham); p. 9 and p. 11 (Ms Schutz).

Can the majority of development proposed in the Further Amended DA be characterised as development ‘of the land on which such a building is erected’ for the purpose of cl 5.10(10)?

On the applicant’s case the only heritage item on the subject site is the dwelling. The Applicant’s position gives rise to a question as to whether the Further Amended DA falls within the scope of cl 5.10(10) at all. That is, does the Further Amended DA seek consent to development ‘…of the land on which such a building [that is a heritage item] is erected’? If the Applicant cannot so satisfy the Court then it fails in limine.

There is a constructional choice as to whether the reference to ‘land’ in cl 5.10(10) is to the land physically occupied by the footprint of a building that is a heritage item or if it is to the cadastral boundary. Plainly the applicant’s position is that the reference to ‘land’ is to the cadastral boundary of 2 Nulla Nulla Street; but principles of interpretation and judicial authority suggest that is not correct.

The decision of the Court of Appeal in Stamford Property Services v Mulpha Australia [2019] NSWCA 141, although in the context of the Heritage Act 1977, supports the proposition that the reference to ‘land on which such a building is erected’ in cl 5.10(1) should be construed as only that part of the lot which a building physically occupies (ie its footprint) and not the whole of the cadastral lot. If that be the accepted interpretation (with the exception of the proposed development to the dwelling) having regard to the applicant’s position that it is only the dwelling house that is listed as a heritage item, then Further Amended DA cannot take the benefit of cl. 5.10(10), being outside the footprint of that dwelling and therefore consent must be refused.

In Stamford Property Services v Mulpha Australia the Court of Appeal considered the interpretation of s 57(1)(e) of the Heritage Act 1977 and in particular whether development was ‘in relation to the land on which the building…is situated’. Leeming JA and Emmett AJA held that properly construed, the reference to ‘land on which the building is situated’ means the part of the lot on which the building has been build and not the whole of the cadastral lot’: per Leeming JA at [94]; see also Emmett AJA at [148]-[150] and [159].

Although not in precisely the same terms it is noted that there is a strong connection between the subject matter, scope, and purpose of the Environmental Planning and Assessment Act 1979 (the express objects of which encompass the promotion of built and cultural heritage) (See also eg Environmental Planning and Assessment Act 1979, s 3.20; Schedule 5, Part 4, cl 3; Standard Instrument (Local Environmental Plans) Order 2006; standard instrument, Schedule 5 – direction) with that of the subject matter, scope, and purpose of the Heritage Act 1977 such that the Court of Appeal’s decision would be strongly persuasive of the correct approach to interpreting the meaning of ‘the land on which such a building is erected’ within cl 5.10(10).

That the reference to ‘land’ is only to that part on which the building (that is a heritage item) is actually physically erected (ie within its footprint) and not to the cadastral boundary, is also consistent with the High Court’s interpretation of ‘land’ under the EP&A Act. In particular that references to land under that Act are directed to land as a topographical entity and are concerned with the physical use made of, or affecting, the topographical entity of land – not private rights of ownership (North Sydney Council v Ligon302 Pty Ltd (1996) 185 CLR 470 per Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ at p. 481; Although since amended to include a reference to ‘a building erected on the land’ - s 1.4).

What development is proposed for the heritage dwelling

According to the applicant in opening address, the proposed works to the heritage dwelling are identified in:

(a) Heritage 21, Statement of Heritage Impact at 5.0 – Works Proposed; and

(b) Heritage 21, Heritage Management Document at 6.0 – Schedule of Conservation Works.

In respect of the Statement of Heritage Impact it is evident when one looks at the sub-set of architectural plans referred to in that document (bearing in mind that those plans have now been superseded) and also the description of works at 6.2 that the statement at 5.0 – Works Proposed is incomplete. The obscured nature of the scope of demolition and consequential works is further evident when one looks at the structural report prepared by Northrop (referred to at Exhibit B, Tab 3, p. 60) and the DA Cost Estimate report (also referred to at p. 60).

In respect of the Heritage Management Document the applicant does not appear to appreciate its express limitations. Those limitations are identified at 1.6 - Limitations and in particular that the report:

…is based upon an assessment of existing original fabric that is to remain and be maintained. Any new works are beyond the scope of this report. [emphasis added]

The identified 6.0 – Schedule of Conservation Works can only be understood with the above limitations in mind. In this regard the proposed internal demolition. The unclear nature of the demolition and consequential works was identified by Ms Gregory, although in the context of Contention 23 dealing with the inadequacy of the architectural plans: Exhibit 4 at [24]. It was also raised by Ms Holtham in the Joint Planning and Heritage Report: Exhibit 6, p. 5 at [11]-[12].

In respect of the Joint Planning and Heritage Report, the Applicant’s heritage expert, Ms Schutz, did not respond to the aforementioned concerns.

Moreover, the heritage experts agree that, in respect of Contention 19 that insufficient information relating to the partial demolition of the heritage item (as particularised referring to the demolition of both built and landscape elements which has not been adequately justified), more documentation is required: Exhibit 5 at p. 27. That agreed position is telling. In the absence of sufficient information the Court could cannot reasonably form the requisite positive state of satisfaction of the matters enumerated in cl 5.10(10). That positive state of satisfaction is a jurisdictional pre-requisite to an exercise of power to grant consent to the development for the purpose of a residential flat building.

The Applicant’s reliance upon cl 5.10(10) is fundamental to its case, as in the absence of a favourable decision under that provision (if it is available at all), the development for the purpose of a residential flat building is prohibited in the zone R3 Medium Density Residential. Accordingly, the Further Amended DA must be refused.

In addition to, but related to the foregoing, the Court is not in a position to properly consider the actual effect of the proposed development on the heritage significance of the heritage item. As such, the Court could not be reasonably satisfied that the objectives of cl 5.10 were achieved and the Further Amended DA should be refused.

Is the conservation of the heritage item facilitated by the granting of consent – cl 5.10(a)

The need to carry out minor maintenance works which is an ordinary incident of property ownership is not within the scope and purpose of conservation work within the meaning of cl 5.10(10). Although the ordinary and natural meaning of the term ‘facilitate’ is make easy or less difficult or more easily achieved, reasonably construed, it is not the purpose of that clause to enable reliance upon works of a de minimis nature (Parramatta City Council v Hale (1982) 47 LGRA 319 at p. 335 per Street CJ). Alternatively, the fact that what is proposed constitutes minor maintenance work would weigh heavily in any merit balancing assessment as to whether consent should be granted.

The heritage experts agree that, in interpreting cl 5.10(1)(a) of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) regard should be had to the meaning of the term ‘conservation’ as defined by the Burra Charter, 2013: Exhibit 6 at [5], [9].

Article 8 of the Burra Charter (2013) provides as follows:

Conservation requires the retention of an appropriate setting, This includes retention of the visual and sensory setting, as well as the retention of spiritual and other cultural relationships that contribute to the cultural significance of the place.

New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate.

Setting, in turn, means ‘the immediate and extended environment of a place that is part of or contributes to its cultural significance and distinctive character.’19 The explanatory notes to the definition of setting note that the following may be included: the visual setting including views to and from the place; historical and contemporary relationships, such as use and activities; social practices.20

That a setting may include historical relationships such as use and activities and social practices is relevant to a consideration of the proposed loss of the tennis court.

As this Court found in David Fox v North Sydney Council [2016] NSWLEC 1366 at [47]:

Facilitating conservation requires a higher threshold than just ensuring the proposal does not adversely impact on the identified heritage significance of an item. In order to facilitate the conservation of the heritage item, the proposal must assist in retaining its cultural significance, such as by revealing and interpreting the heritage significance of the item.

In George v City of Parramatta Council [2017] NSWLEC 1366 at [54] the Court found that the following detrimental impacts were sufficient to warrant the conclusion that cl 5.10(10) was not satisfied:

(a) ‘the proximity of the proposed development to the rear of the heritage items, which intrudes into the curtilage of the items;

(b) the height of the proposed residential flat building, and its site coverage which in combination result in a bulky form that has a detrimental impact on the heritage items by being overbearing; and

(c) the proposed approach to the architectural design and materiality, that is antipathetic to the simplicity and symmetrical character of the heritage items.’

The statement of adverse impacts in George v City of Parramatta Council above (with the exception of a reference to simplicity and symmetrical character of the heritage item) equally apply to the Further Amended DA.

The conservation of heritage items includes ensuring that development respects their curtilage and setting to facilitate the retention and interpretation of its heritage significance: George v City of Parramatta Council [2017] NSWLEC 1366 at [57].

The Court could not reasonably form a positive opinion that the conservation of the heritage item is facilitated by the consent in circumstances where:

(a) the scope of demolition and consequential works is unresolved;

(b) the heritage experts agree that, in respect of the contention that there is insufficient information relating to the partial demolition of the heritage item (contention 19), more documentation is required: Exhibit 5, at pp. 26 – 28;

(c) the planning experts agree that the site analysis is inadequate: Exhibit 4, p. 16 [30]; see submissions at [67]-[68] below – no supplementary site analysis forming part of the Further Amended DA;

(d) the Applicant’s town planner, Mr Mead, impliedly accepts that the upper level of the residential flat building is dominant (notwithstanding its significant reduction consequent upon the Further Amended DA): Exhibit 7, p. 48 at [129];

(e) the Applicant’s various heritage documents forming part of the Further Amended DA assessed the tennis court as of moderate heritage significance. The Applicant’s heritage expert did not demure from that assessment: Exhibit 5, p. 6;

(f) both heritage experts agree that the significance of the heritage item is not limited to the subject dwelling, but includes the garden setting and presentation to the streetscape, in addition to an associational relationship with John Anderson: Exhibit 5, pp. 4 – 6 (Ms Holtham); p. 9 and p. 11 (Ms Schutz);

(g) on the evidence of Ms Holtham, which the Court should prefer having regard to her extensive qualifications and experience, there will be a significant adverse impact on the heritage item by reason of loss of ‘loss of contributory landscaping elements including the tennis court and mature trees, ultimately undermining the garden setting, which is identified as significant to the item’: Exhibit 5, p. 4. See further opinion at pp. 5 – 6. Ms Holtham was further of the opinion that the loss of the tennis court would result in a detrimental and permanent impact on the ability of a heritage item to communicate and represent historic, associational and social significance: Exhibit 5, p. 6.

Even if the Court were to conclude, contrary to the submissions above, that the Further Amended DA satisfied the first limb of cl 5.10(10), and putting aside satisfaction of the other limbs, the Court is left with a discretion as to whether it would be appropriate to grant consent to development that would otherwise be prohibited – namely a residential flat building. The Respondent submits that in that discretionary balancing exercise the Court would give particular weight to the fact that there is hardly any necessary conservation work.

Development in accordance with an approved heritage management document – cl 5.10(10)(b)

Having regard to the inconsistencies in the material forming part of the Further Amended DA and the express limitations in the Heritage Management Document, the Court would be circumspect as to whether this precondition is satisfied. The respondent says it has not. But one ready example is that the heritage documents (whether that be the Heritage Impact Statement or Heritage Management Document) are silent as to the structural works that are intended to be carried out in order to convert the attic into a bedroom: Northrop Structural Report, Exhibit B, Tab 7, p. 255; Exhibit 6, p. 11, opinion of Ms Holtham.

What is the necessary conservation work? - cl. 5.10(10)(c)

Pursuant to cl 5.10(10)(c) of the LEP, a consent authority must for a positive state of satisfaction that ‘the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out’. This is addressed in the Statement of Heritage Impact at Exhibit B, Tab 3, pp. 118-119. It appears that the Applicant takes the position that all work to the existing dwelling is necessary conservation work.

The proposition that all the work proposed constitutes necessary conservation work has not been made good. At a base level that is because the need for any such works is not yet known. When one looks at the Heritage Management Document at 6.0 – Schedule of Conservation Works and the conservation actions proposed it is plain that the existing condition of the majority of items are unassessed and as such the need for any particular work outlined is speculative in nature. The schedule of works are more in the form of identification of the investigations that will need to occur and identification of what work might be carried out. The actual scope of work that will be carried out is uncertain.

In the case at hand the scope of work for which development consent is sought is uncertain. This is addressed in respect of the different types of development for which consent is required below.

Demolition/alteration of exterior

Council contends insufficient information relating to the partial demolition of the heritage item has been provided (Contention 19). In particular, that the proposed development includes the demolition of a number of built and landscaped elements, which has not been adequately justified. In response to those matters, both heritage experts agree that more documentation is required: Exhibit 5, at pp. 26-27

Ms Holtham has given evidence that ‘…the full extent of conservation work is not accurately represented on the plans and the consent authority cannot grant consent for speculative works’: Exhibit 5 at [12]. The uncertainty regarding the work proposed to the exterior of the heritage dwelling is evident when comparing the Heritage Management Document, prepared by Heritage 21, dated December 2019 with the Architectural drawings. This includes as an example, automated privacy blinds proposed to the eastern side of veranda (Proposed Ground Floor Plan, DA 1.103_3). There has been no assessment of the impact of the installation of such work. The only apparent reference is to a general recommendation in the Heritage Management Document that ‘[w]here introducing canvas blinds to the timber posts of the eastern veranda, minimise penetrations and ensure the box is as small as possible. The box is to be located on the inside face and painted to match the existing paint of the timber post to ensure it has minimal visual impact’: p. 46.

There is also uncertainty regarding the existing brick, sandstone, and timber fencing. The Statement of Heritage Impact says that this will be reinstated: Exhibit B, Tab 3, p. 121. Some of the architectural plans refer to the existing fencing on the western boundary as being replaced whilst others yet again note that it will retained (the extent of retention also differing in the drawings). See Section B-B, Sheet 1 with notation referable to fence on western boundary that ‘existing non-original fence replaced with timber post & paling fence in accordance with heritage consultant’s recommendations’: Exhibit C, Tab 27, p. 406. Compare Existing & Demolition Site Plan, DA.1.001_1: Exhibit B, Tab 24, p. 382 and Existing & Demolition Ground Floor Plan, DA 1.002_01: Exhibit B, Tab 25(a), p. 384.

Internal changes

The Existing & Demolition Ground Floor Plan, Drawing DA 1.002_01 (Exhibit B, Tab 25a) shows the demolition of internal walls to the heritage dwelling. These are original lime plastered walls with high significance: Exhibit D, Tab 49, p. 713. It is uncertain what consequential changes are proposed to this area.

With the benefit of a site inspection and comparing the photographs of the two bathrooms in the Conservation Management Plan (Exhibit D, Tab 49, p. 740 and 744) with the layout shown on Proposed Ground Floor Plan, DA 1.103_05 (Exhibit E, Tab 2) it is evident that there is an intention to renovate the two bathrooms. The scope of works and their impact to the heritage fabric of the building is unknown. That such works are proposed is supported by the Quantity Surveying Report: Exhibit C, Tab 44, p. 510.

During the site inspection the general location of the walls to be demolished was pointed out to the Court. The wall vents on some of these walls was also pointed out. The wall vent for the former pantry room was identified in the Conversation Management Plan as significant under the ‘physical description’ (Exhibit D, Tab 49, p. 717), although allocated a ‘high’ significance rating in the table which followed (p. 718).

The main bathroom has original lime plastered walls and retained (read as original) brick vents. That vent was allocated as of ‘high’ significance: Exhibit D, Tab 49, p. 741.

The vent above the stairway to the roof cavity is shown in Figure 150 and identified as having ‘high’ significance: Exhibit D, Tab 49, p. 714

Will the proposed development in the Further Amended DA adversely affect the heritage significance of the heritage item, including its setting? – cl 5.10(10)(d)

For all of the reasons already outlined above, the Court could not form an opinion of the negative proposition, namely that the development would not adversely affect the heritage significance of the item. Indeed, it is likely to form the opinion that there will in fact be an adverse impact.

Any significant adverse effect on the amenity of the surrounding area – cl 5.10(10)(e)

Ms Gregory, Town Planner, gave evidence for the Respondent. In respect of the breach of the 11.5m height control she was of the opinion that the proposal before the Court ‘…will result in a building that will be highly visible from parts of this street [ie Nulla Nulla]’. Of, note, the visibility of the building will increase towards the cul-de-sac where it will be clearly visible from land zoned R2 Low Density Residential. That will be plainly evident to the Court having undertaking a view.

Recognising that subsequent to the joint reporting process the applicant advanced its Further Amended DA, Ms Gregory was asked to explain to the Court to what extent, if any, the documents comprising Exhibit E changed the opinion that she expressed in that report. She did not demur from those statements.

Dr Zandaro was of the opinion that there would be ‘…a detrimental impact to local amenity with additional height and bulk adjacent to the heritage -listed house, to neighbouring properties and within the streetscape’. Similar to the above, Dr Zanardo was asked to explain to the Court to what extent, if any, the documents comprising Exhibit E changed the opinion that he expressed in the joint report. He did not demur from those statements.

Mr Dickson’s evidence as to the impacts of an exceedance in the building height development standard focuses on its relationship to Turramurra Avenue. Other than a bare assertion that ‘[i]n the visual context of the site, which includes five storey development whether viewed from the north or south on Turramurra Avenue or east or west on Nulla Nulla Street, the proposal will not be out of scale of character with the existing or likely future character’ he was otherwise silent as to the impacts from Nulla Nulla Street. In oral examination in chief Mr Dickson made reference to the conservation area at the eastern end of Nulla Nulla Street. His evidence, both written and oral, was otherwise silent as to the impacts that would be had on the relationship between the heritage subject site and that conservation area.

The cul-de-sac of Nulla Nulla Street forms part of a heritage conservation area in addition to two properties at its eastern end being identified as heritage items. The existing desirable visual connection between the conservation area and the subject site (with its garden setting and rooftop terracotta capping) will be lost, replaced instead with stark visual connection to an overbearing residential flat building. Consistent with Mr Zandaro’s opinion, and with the benefit of a view, the Could would readily conclude that there will in fact be not only an adverse impact, but significantly so to the amenity of the surrounding area, including a conservation area. The foregoing also being relevant to consideration under s 4.15(1)(b)-(c) of the EP&A Act.”

Findings

Construction of cl 5.10(10) of LEP 2012

34. LEP 2012 is an environmental planning instrument (EPI) made under Div 3.4 of the EPA Act and as a statutory instrument, it must be interpreted in accordance with the general principles of statutory interpretation. The Interpretation Act1987 applies to EPIs (see the Note under Div 3.4 of the EPA Act and s 11 of the Interpretation Act). The starting point for analysis is the text and the overall objective is to construe the text so that it is consistent with the language and purpose of the instrument (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [1998] HCA 28, 381).

35. Clause 5.10 is a compulsory clause of the Standard Instrument - Principal Local Environment Plan (Standard Instrument LEP). LEP 2012 is based on the Standard Instrument LEP template. The Standard Instrument LEP directs that heritage items as identified in Sch 5 must be shown on the Heritage Map.

36. Clause 5.10 provides objectives and requirements for development on land on which a heritage item, an Aboriginal place of heritage significance, an Aboriginal object or an archaeological site is located; and on land that is within a heritage conservation area. Clause 5.10 proscribes that development consent is required under the clause in certain circumstances (sub-cl 5.10(2)) and development consent is not required in certain circumstances (sub-cl 5.10(3)). Clause 5.10 includes a jurisdiction threshold for the consent authority to consider the effect of proposed development on the heritage significance of an item or area before granting consent, at sub-cl 5.10(4). The consent authority has power to require a heritage management document to be prepared for proposed development on land on which a heritage item is located, on land that is within a heritage conservation area, or on land that is within the vicinity of land on which a heritage item is located or that is within a heritage conservation area, to assess the extent to which a the carrying out of development would affect the heritage significance of an item or a heritage conservation area (sub-cl 5.10(5)). The consent authority has power to require a heritage conservation management plan be prepared, after considering the heritage significance of a heritage item and the extent of change proposed to it (sub-cl 5.10(6)).

37. Sub-clause 5.10(10) of LEP 2012, the heritage incentive clause, permits a consent authority, or the Court exercising the functions of the consent authority, to grant consent to development “for any purpose of a building that is a heritage item or of the land on which such a building is erected… even though development for that purpose would otherwise not be allowed by [the LEP]”, subject to the consent authority’s satisfaction of the matters at (a) to (e). The phrase, “development for any purpose” refers to the use of the proposed development. In planning law, use must be for a purpose and the purpose is the end to which the land is seen to serve (Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]). The focus of the heritage incentive clause is on expanding the uses to which a building (or an Aboriginal place) identified as a heritage item, or the land on which the building is erected, can be put to, in order to facilitate the conservation of the building (or the Aboriginal place).

38. The (otherwise prohibited) use that a building identified as a heritage item, or the land on which the building is erected, can be put to is constrained by the requirements at (a) to (e) of the heritage incentive clause. The proposed use must meet the five requirements of the clause, to the satisfaction of the consent authority, to be capable of being granted consent under the heritage conservation clause. The five requirements are conjunctive and so the proposed development, for a use otherwise prohibited under the LEP, must meet each of the five requirements to be capable of being granted consent under the clause. The granting of consent is discretionary even if the five requirements of the heritage incentive are met, because “the consent authority may grant consent” [italics added] (s 9(1) of the Interpretation Act).

39. The purpose of the proposal is a residential flat building containing 7 dwellings and a separate dwelling, under a strata scheme. A residential flat building is not specified in item 2 of the Land Use Table under the R3 zone of LEP 2012 and is, at item 4, therefore prohibited. The application has been made under sub-cl 5.10(10) of LEP 2012. The proposal can be granted consent, if the Court, exercising the functions of the consent authority, is satisfied that the proposal meets the five requirements of the heritage incentive clause, because a residential flat building is not otherwise allowed by LEP 2012.

40. I do not accept the applicant’s submission that the heritage incentive clause opens up an unfettered opportunity for flexibility in regard to the other provisions of the LEP. The heritage incentive clause expands uses to which a building identified as a heritage item, or the land on which the building is erected, can be put to, beyond the nominate and innominate uses permissible under the relevant zone of the Land Use Table of the LEP. The heritage incentive clause permits an application to be made to change the use of a heritage item, or of the land on which such a building is erected, to a use that would otherwise be prohibited under the LEP. If other provisions of the LEP do not serve to prohibit the proposed use, then they provide a basis for the assessment of the application as required under s 4.15 of the EPA Act.

41. I do not accept the applicant’s submission that the development standards in LEP 2012 are excluded by the operation of the heritage incentive clause. The development standards in LEP 2012 apply to the proposal. There is nothing in cl 5.10(10)(e) that excludes the operation of the development standards in the LEP. Sub-cl (e) is instead an additional requirement to the operation of the development standards in LEP 2012 for the (otherwise prohibited) use to be capable of being granted consent. The consent authority’s satisfaction under sub-cl 5.10(10)(e) that a proposal “would not have any significant adverse effect on the amenity of the surrounding area” is subjective and potentially wide ranging. The test under cl 4.6(4) for the contravention of a development standard is different and not limited to a consideration of amenity impacts on the surrounding area.

The heritage item identified by LEP 2012 is the dwelling house

42. I accept the applicant’s submission that the heritage item is the dwelling as described in Sch 5 to LEP 2012.

43. LEP 2012 includes the following definition of heritage item (from the Standard Instrument - Principal Local Environmental Plan (Standard Instrument LEP) dictionary):

heritage item means a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5.

Note—

An inventory of heritage items is also available at the office of the Council.

44. The statutory definition of heritage item under LEP 2012 is all-inclusive, and applies to a building, a work, a place, a relic, a tree, an object or an archaeological site. A “building” is defined by the EPA Act (s 11 of the Interpretation Act) as:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

45. A “work” is defined by the EPA Act as:

work includes any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act.

46. A “place” is not defined by the EPA Act or LEP 2012. Under the Heritage Act 1977, which is not referenced by the EPA Act, “place” means an area of land, with or without improvements. Place is defined by the Australia ICOMOS Charter for Places of Cultural Significance 2013 (the Burra Charter) at 1.1, for the purposes of the Burra Charter, as:

“Place means a geographically defined area. It may include elements, objects, spaces and views. Place may have tangible and intangible dimensions.”

47. A “relic”, under the EPA Act, has the same meaning as in the Heritage Act, which is:

relic means any deposit, artefact, object or material evidence that—

(a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and

(b) is of State or local heritage significance.

48. A “tree” is undefined by the EPA Act and LEP 2012.

49. An “object” is undefined by the EPA Act and LEP 2012. Under the Burra Charter, an object at a place is encompassed by the definition of place, and may or may not contribute to the cultural significance of place (explanatory notes).

50. An “archaeological site” is defined by LEP 2012 as:

archaeological site means a place that contains one or more relics.

51. The definition of heritage item does not apply “the item” to land, other than one of the seven things that may comprise the item, being “place”. The “location” and “nature” of the item is described in Sch 5. The Standard Instrument LEP includes the direction under Sch 5, “The description of a heritage item should be included in a column headed “Item” and should include a brief description of those things that are part of the heritage significance of the item”.

52. The Council submitted that the heritage item is the entirety of the subject site, as defined by its cadastral boundaries identified in Sch 5 to LEP 2012. The applicant submitted that the heritage item is the dwelling house on the site, as identified by the item name in Sch 5. The heritage item is the building identified as “the dwelling” by Sch 5 to LEP 2012.

53. Clause 5.10 includes a number of references to a heritage item that indicate that the heritage item is not synonymous with the land on which that heritage item is located; see, for example, at (2)(b), “altering a heritage item that is a building… or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item”, and (2)(e), “erecting a building on land – on which a heritage item is located…”, and (2)(f) subdividing land – on which a heritage item is located…” and (5)(a), “on land on which a heritage item is located” [italics added]. These phrases, read in the context of cl 5.10, are consistent with the interpretation of the definition of heritage item as being one of the seven things, and not the land that is the cadastral lot identified by Sch 5.

54. The heritage incentive clause is only engaged when the heritage item is a building, or an Aboriginal place. The heritage incentive clause is not engaged when the heritage item is a place (other than an Aboriginal place of heritage significance); and the definition of heritage item excludes the site, or land (regardless of the meaning of land being either the footprint of the building or the cadastral lot that is the site).

55. The listing of the heritage item applies to a building, described under Sch 5 as a dwelling house. The heritage item is the dwelling house. The tennis court is not identified by the listing as being part of the heritage significance of the item. The location of the item, being the dwelling house, is the description of the cadastral lot. The cadastral lot is not the heritage item. Notwithstanding that the item does not include the tennis court, it is possible that an identified curtilage of the item may include the tennis court, or that the curtilage of the item includes the area upon which the tennis court is located. It is also possible that the curtilage of the item does not include the tennis court or the area of land upon which the tennis court is located.

56. The heritage map, Heritage Map HER_007A of LEP 2012, identifies the cadastral lot by a solid colour and a reference to the item number. Clause 5.10 includes a note stating that heritage items are listed and described in Sch 5, and heritage conservation areas are shown on the heritage map, as well as being described in Sch 5. There is no express reference to the heritage map in relation to heritage items under cl 5.10 of LEP 2012. The maps are referred to under cl 1.7 of LEP 2012, with a reference in LEP 2012 to a named map adopted by the LEP being a reference to a map. As there is no express reference in LEP 2012 to the heritage map in relation to heritage items, and there is no reference to the heritage item being the land identified by the heritage map, it is reasonable to construe the heritage item as being the description of the item in Sch 5 and the map as identifying the location of the heritage item. The heritage map is based on the digital cadastral information in the geographic information system (GIS) held by the Council and does not show the heritage item (see Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; [2005] NSWLEC 152 at [31]). This is a different circumstance to the facts in Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 (Mulpha) because items listed on the State Heritage Register generally include a plan on the heritage inventory sheet that forms part of the listing and the plan does not necessarily correspond to the cadastral lot of the item, as was the case in Mulpha.

51. I have had regard to Justice Lloyd’s decision in Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; [2005] NSWLEC 152 and while there are obvious parallels between the facts of that case and this appeal, his Honour was construing a LEP that pre-dated the Standard Instrument LEP template and so his construction of what constituted the heritage item cannot simply be adopted because it is specific to the terms of the provisions in that LEP.

The land referred to in the heritage incentive clause is the cadastral lot identified by Sch 5

58. I accept the applicant’s submission that the land referred to in the heritage incentive clause, “the consent authority may grant consent to development… of a building that is a heritage item or on the land on which such a building is erected” [italics added] is the cadastral lot identified by Sch 5 (and the Heritage Map to LEP 2012), and is not confined to the footprint of the building that is the heritage item.

59. The applicant submitted that “land” in the context, “…development for any purpose of a building that is a heritage item or of the land on which such a building is erected”, in cl 5.10(10) of LEP 2012, should be taken as a reference to the lot of land on which the item is located. The Council submitted that the applicant’s interpretation of the heritage item being the dwelling, and not the cadastral lot, raised the question as to whether the proposal falls within the scope of cl 5.10(10) at all, if the meaning of “land”, in this textual context, is the same as Leeming JA’s interpretation of “land” in s 57(1)(e) of the Heritage Act.

Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141

60. The Old Health Department Building, the subject of the consideration of the prohibition for development without the approval of the Heritage Council under the Heritage Act 1977 (Heritage Act) by Leeming JA in Mulpha at [16]-[94], is listed on the State Heritage Register (SHR) as a State heritage item. The Old Health Department Building, being the heritage item, is on the north-eastern corner of the lot and occupies a small minority of that lot, adjacent to the street corner (at [2]). The heritage listing includes a plan identifying the approximate footprint of the heritage item as a small minority of the larger cadastral lot, which was referenced in the Minister’s direction to list the building on the SHR as published in the NSW Government Gazette (at [4]).

61. Stamford’s application was for the retention and retail use of the Old Health Department Building and for the demolition of another structure on a part of the lot not identified as the curtilage of the heritage item and construction of a large tower on that part of the lot. The application was integrated development within the meaning of s 4.46 of the EPA Act because the application required an approval from the Heritage Council. The Heritage Council had issued General Terms of Approval for that part of the proposal that related to the use of the Old Health Department Building and provided only a comment on the proposed tower, at [7]. In summary, the question before the Court of Appeal was whether the prohibition in s 57(1)(e) of the Heritage Act related to the heritage item being the Old Health Department Building and the curtilage of the heritage item identified by the plan, as submitted by Stamford; or whether it related to the cadastral lot, as submitted by Mulpha. The question turned on the construction of the first reference to “land” in s 57(1)(e) of the Heritage Act.

62. The heritage listing, which was central to the appeal in Mulpha, applied to the Old Health Department Building and to the curtilage of the heritage item identified by the plan at [33]. The remaining portion of the cadastral lot was not part of the heritage item. A listing under the Heritage Act may apply to either an item, or to land, at [36]. The fact that s 57 and those sections related to it referred in detail separately to buildings and to the site or curtilage of buildings was an important consideration in construing the word, “land” in s 57(1)(e), at [53].

63. Leeming JA identified the key to approaching the construction of the prohibition in s 57(1)(e) of the Heritage Act is an understanding of the unique definition of ‘development’ under the Act, at [60], and the harmonious construction of the definition of development in s 4(1) and the direction at s 4(5)(f), at [58]-[59]. His Honour concluded that the object is to identify one of the seven things referred to in s 57(1), being either one of the six things that are “the item” or the “the land” and then apply subsection (e) if it relates to that thing, at [62]. In the circumstances of the case, the subject was “the item”, being the Old Health Department Building and the footprint identified by the plan was the curtilage, and the reference to “land” in s 57(1)(e), “carry out any development in relation to the land on which the building… is situated” [italics added] is confined to the land on which the heritage item is situated, because the prohibition in the sub-section is in its application to the heritage item and its site expressed in the heritage listing, at [62]-[63].

64. The statutory scheme for the identification and management of heritage items on the SHR is different to the statutory scheme governing the identification and management of local heritage items. The construction of the prohibition for development in relation to land on which a State heritage item is situated, without approval under Pt 4 of the Heritage Act, cannot be used as a basis to interpret the compulsory heritage incentive clause of the Standard Instrument LEP, despite the similarity of the two phrases. The critical difference in the statutory scheme for State heritage listing, as identified in the facts of Mulpha, is the identification of the heritage item, by the gazettal of the Minister’s direction for the listing of the heritage item on the SRH, by reference to a plan that identified the curtilage of the heritage item (Mulpha at [33(b)] and that plan identified only a small portion of the cadastral lot as the curtilage. Leeming JA held that the first reference to “land” in s 57(1)(e) of the Heritage Act referred to the land identified as the footprint of the heritage item and it’s curtilage by the plan and not to the cadastral lot, at [94].

65. Leeming JA’s construction of the prohibition in s 57(1)(e) of the Heritage Act upon carrying out any development in relation to the land on which a listed building is situated, without the approval from the Heritage Council, is specific to the text and syntax of the provision in its statutory context and cannot be adopted as the correct construction of the phrase in cl 5.10(10) of LEP 2012, “or of the land on which such a building is erected”. His Honour noted, at [78], that [the meaning of] “land” is highly contextual.

66. The EPA Act includes the following definition of land:

land includes—

(a) the sea or an arm of the sea,

(b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and

(c) a river, stream or watercourse, whether tidal or non-tidal, and

(d) a building erected on the land.

67. The definition of land under the EPA Act is not confined to the four descriptions, it can have other meanings, depending on the context. Definitions apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates (s 6 of the Interpretation Act). The meaning of land in the heritage incentive clause is specific to the text of the provision and the operation of cl 5.10 and the instrument regarding heritage items.

68. The land in the context of the provision is worded in the alternative to the heritage item, “a building that is a heritage item or of the land…” [italics added]. This is consistent with the references to a heritage item, as distinct from the land, throughout cl 5.10, as noted above at [53].

69. The focus of the heritage incentive clause is on expanding the uses to which a building identified as a heritage item, or the land on which the building is erected, can be put to, in order to facilitate the conservation of the building or Aboriginal place. It is unlikely, in this context, that “land” is confined to the building footprint; because there is no development that can take place, other than development associated with the proposed use of the item, within the building footprint, as the assumption must be that the building that is the item is being retained in order for it to be preserved. As the clause seeks to expand the uses to which the building, or the land on which the building is erected, can be put to in order to facilitate the conservation of the building, it makes sense in the context of the purpose of the provision that the “land” is not confined to the building footprint, but is instead the location of the heritage item identified in Sch 5 and by the heritage map. If the meaning of “land” is confined to the building footprint, there is no purpose served by adding the phrase, “or the land on which such a building is erected” to the provision. The provision could refer only to the “development for any purpose of a building that is a heritage item” and this would provide the same scope for development.

70. In Mulpha, Leeming JA construed a prohibition in relation to “the land on which the building is situated”. The plan included on the heritage inventory sheet of the listing of the Old Health Department Building identified the building footprint as the curtilage of the heritage item (Mulpha at [33(2)]. Under the heritage incentive clause, “the land on which such a building is erected” is in the alternative to the heritage item that is the building and the provision seeks to expand the permissible uses for the item, or the land, in order to facilitate the retention and conservation of the item. Schedule 5 identifies the location of the heritage item as the cadastral lot and the cadastral lot is shown as the location of the heritage item on the heritage map. These key differences, and fundamentally, the difference in the text and statutory context of “land” in the two provisions, do not support the proposition that the reference to land in the heritage incentive clause should be construed to have the same meaning of “land” in s 57(1)(e) of the Heritage Act as only that part of the lot which a building physically occupies.

The proposal has an adverse impact on the heritage significance of the heritage item

Evidence

71. According to Ms Schutz, the primary view of the dwelling is from the corner of the Nulla Nulla Rd and Turramurra Ave and this corner of the site, and the footprint of the original dwelling, forms an appropriate curtilage for the heritage item. The reduced curtilage identified by the Conservation Management Plan is appropriate in her opinion, because it is based on the historical allotment, functional uses, visual links and significant features. The setting of the heritage item is no longer reflected in the existing lot boundaries but is further reduced, and includes the original building form, a setback from the eastern verandah and the perimeter plantings and mature trees.

72. Ms Holtham disagrees with the reduced curtilage proposed by the applicant and in her view, the curtilage identified by the CMP results in the loss of contributory landscaping element, the tennis court and mature trees, undermining the garden setting which is identified as significant to the item.

73. The heritage experts disagreed on whether the tennis court is a key element that contributes the setting of the heritage item. According to Ms Holtham, the earliest evidence of a tennis court on the site is 1930 and although the physical fabric of the grass tennis court was removed and replaced in 1997, the tennis court still has an association with the former owner of the property, philosopher John Anderson, because he was known to invite students to his house for a tennis party. It is essential, in her view, to retain an area around the dwelling as a curtilage, and the tennis court is contributory to the significance of the item. Ms Holtham also has a concern about the number of trees to be removed in the proposal.

74. According to Ms Schutz, the garden setting of the original dwelling is retained, and it contributes to the significance of the item and its presentation to the public domain. The existing tennis court, however, is not original and as it is no longer a grass surface, and because the grounds have undergone significant modification including the removal and reinstatement of the tennis court in 1997, the tennis court should not form part of the curtilage of the heritage item.

75. The heritage experts disagreed about how much conservation and maintenance is required for the original portion of the dwelling. According to Ms Schutz, conservation is not limited to the maintenance of a heritage item and the conservation works include the removal of the intrusive later additions to the dwelling, the reinstatement of elements such as chimneys, the roof form and the eastern verandah. According to Ms Holtham, the proposal does not facilitate the conservation of the heritage item because the proposal includes the removal of significant elements of the item and the proposal compromises the setting and curtilage of the item.

76. According to Ms Schutz, the proposal respects the heritage significance of the item, by retaining the existing dwelling, the garden setting and the removal of intrusive elements, and the proposal includes introduction of new elements including the addition to the dwelling and the residential flat building, all done so as to not detract from the item. In her view, the addition does not detract from the item. According to Ms Holtham, the heritage item is not under threat, the item is protected by its heritage listing and the item has been used as a dwelling for over a century and it is in a good state of repair. In her view, the works are not necessary at this time, and the scale of the development far exceeds that which would facilitate the conservation works. The proposal is, in her opinion, an exploitation of the heritage incentive clause to development the site beyond that which is envisaged by LEP 2012.

77. In Ms Schutz’ view, the siting of the residential flat building is sufficiently separated from the heritage item and does not intrude on the setting of the original dwelling. In her opinion, the stepped and articulated façade of the residential flat building, where higher parts of the façade are set back, the use of sympathetic materials and the green wall along the western elevation of the building are all aspects of the proposal that make it a sympathetic addition in the context of the heritage item.

Findings

78. There is no power for the consent authority to determine an application on the basis of whether proposed conservation works are necessary or not. The consent authority must be satisfied, under the heritage incentive clause, that the conservation of the heritage item is facilitated by the granting of consent, not whether the works are necessary. Presumably this concept has been adopted from the Burra Charter’s Article 3.1, “conservation… requires a cautious approach of changing as much as necessary but as little as possible”. The Burra Charter’s guiding role has to be interpreted holistically. A heritage item does not have to be under threat to engage the heritage incentive clause. It is a matter for the applicant. Once an application is made pursuant to the heritage incentive clause for a purpose that would otherwise be a prohibited use under the LEP, then the role of the consent authority is to assess the application pursuant to s 4.15 of the EPA Act and to exercise the discretion to grant consent under cl 5.10(10) of the LEP in relation to the proposed use if the consent authority is satisfied of all of the matters (a) to (e).

79. I accept Ms Schutz’ view that the tennis court is not essential to the setting of the heritage item. If the tennis court was removed and replaced with a garden, for example, the identified heritage significance of the heritage item would not be compromised. I accept that the presence of the tennis court contributes an understanding of the historical use and significance of the place, but the association of the dwelling and the tennis court has been eroded by the contemporary replacement of the tennis court and the eastern additions to the dwelling.

80. The separation between the proposed residential flat building and the dwelling is insufficient and the combination of this and the form, scale and bulk of the four storey residential flat building makes it intrusive and dominant on the setting of the heritage item. The obstruction by the residential flat building of the view of the roof of the dwelling from Nulla Nulla Street is detrimental to the setting of the heritage item and its contribution to the character of the locality. The position and scale of the residential flat building is unresponsive to the constraints of the site including the setting of the heritage item and the topography of the site, particularly the fall of the land to the east.

81. The existing dwelling includes a double garage in the basement of the northern extension to the original dwelling and the circular driveway. The proposal is to demolish the northern extension and replace it with a contemporary pavilion style extension to the original dwelling, but not to replace the garage and to provide the only parking for the dwelling in the existing driveway. Locating the only available parking for the dwelling on the existing driveway, without any garaging, is uncharacteristic and the constant presence of cars on the driveway detracts from the landscaped setting of the heritage item.

82. The scale and bulk of the proposed residential flat building and its insufficient separation from the original portion of the dwelling has a detrimental effect on the heritage significance of the Federation era residence, because it overwhelms and dominates the setting of the heritage item and obstructs or interferes with views of the heritage item from the public domain.

83. Given my findings on other determinative issues, it is unnecessary to make a finding on an appropriate curtilage for the item.

Contravention of the height of buildings development standard in LEP 2012

84. The proposal has a maximum height of 13.79m at the top of the lift overrun of the proposed residential flat building, over the existing ground level of the tennis court, representing an exceedance of the height of buildings development standard of 2.79m. The top of the roof parapet on the eastern side of the proposed residential flat building, setback 6m from the shared side boundary with 6 Nulla Nulla Street, is approximately 13m above the existing ground level (DA 2.102_05 East Elevation, Ex E and the site survey, Ex C, tab 31). The height of buildings development standard for the site is 11.5m.

85. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard prepared by Planning Ingenuity and dated 22 February 2021 (Ex E, tab 4).

86. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

87. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

88. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

89. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

90. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

91. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

92. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding the non-compliance with the numerical development standard.

93. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]).

94. The applicant’s written request justifies the non-compliance with the numerical development standard for the following summarised reasons:

• The non-compliance is numerically minor;

• The non-compliance directly facilitates the conservation of the heritage item;

• The maximum breach of the height of buildings development standard is in the centre of the eastern façade of the proposed residential flat building, which is an area of the proposal that is not read in the context of the heritage item;

• The uppermost level of the proposed residential flat building is set in from the façades of the levels below and this reduces the dominance of the uppermost level;

• The ground floor level of the proposed residential flat building is set below the ground level of the footpath on Nulla Nulla Street which reduces the overall height of the residential flat building;

• The building envelope of the proposal does not result in any “built form” impacts;

• The uppermost level of the proposal does not result in any additional amenity impacts on the locality;

• The non-compliance does not result in privacy impacts because the exceedance of the numerical development standard is above the window head of the windows on the uppermost level;

• The FSR development standard is complied with and the proposal locates the permissible gross floor area (GFA) on the eastern portion of the site, away from the heritage item, and this is the part of the proposed residential flat building that exceeds the height of buildings development standard;

• The proposal meets the objectives of the height of buildings development standard;

• The proposal meets the objects of the EPA Act; and

• There are no amenity impacts on adjoining development.

95. The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]).

96. I am not satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). I accept some of the justifications of the exceedance of the height of buildings development standard raised by the applicant may be described as an environmental planning ground in some circumstances. However, I am not satisfied that any of the justifications identified by the written request are sufficient to justify the exceedance of the height of buildings development standard, for the reasons set out in the following paragraphs.

97. The exceedance of the height of buildings development standard is not “numerically minor”. The exceedance of the development standard has allowed the proposed residential flat building to be four storeys high. In order to minimise the exceedance of the development standard, the ground floor of the residential flat building is located at RL 167.18, a level that is below the existing ground level and requires retaining walls at the south-eastern corner of the residential flat building, in the Nulla Nulla Street streetscape, and a level that is lower than the floor level of the dwelling on the adjoining property to the east at 6 Nulla Nulla Street. The lift core and the significant length of the highest wall of the eastern façade (un-dimensioned) exceed of the height of buildings development standard and this façade is setback 6m from the shared boundary with 6 Nulla Nulla Street. A numerically minor exceedance of a development standard may be a persuasive justification for approving a proposal that exceeds a numerical development standard, but it is not, in of itself, an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

98. The environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]). I accept that the proposed development will provide the means to remove the unsympathetic additions to the original dwelling and to carry out the conservation works to the fabric identified by the Heritage Management Document (Ex C, tab 45), however, there is no evidence that the exceedance of the height of buildings development standard, being the provision of the fourth floor and a seventh unit, facilitates the conservation of the heritage item. The facilitation of the conservation of the heritage item is, in this appeal, a benefit of carrying out the development as a whole and is not an environmental planning ground that justifies the exceedance of the height of buildings development standard.

99. The uppermost floor of the proposed residential flat building is not “set in” from the façades below on the eastern side. The plane of the highest wall of the eastern elevation, as described above, extends to the roof level of the uppermost level. Because the 6m eastern side setback is consistent with the ADG’s setback for habitable rooms and balconies for buildings up to 4 storeys, I accept that the eastern side setback is acceptable, but I do not agree with the applicant’s evidence that, in this context, the 6m setback is a “generous side setback”. The eastern setback accommodates the pedestrian entry and the communal open space and clothes drying area of the proposed residential flat building. The eastern setback is therefore, for the full length of the setback to the shared boundary, potentially an active space, which limits both the amount and the effectiveness of the landscaping in the eastern setback. I do not accept that the exceedance of the height of buildings development standard in this location is acceptable, because it locates the highest wall of the proposal in a position on the site closest to the existing two-storey dwelling at 6 Nulla Nulla Street. The scale of the four storey eastern wall of the proposal located 6m from the shared boundary would overwhelm the existing two-storey dwelling on the adjoining property and this is exacerbated by the topography in the locality which falls from Turramurra Avenue. The height of the eastern façade and its location on the site 6m from the shared boundary with 6 Nulla Nulla Street would result in a significant adverse effect on the amenity of the surrounding area.

100. The assumption in the written request that the allowable FSR on the site is an entitlement and that the resultant floor area must be “redistributed”, as in the bulk of the resultant building envelope must be located somewhere on the site, is not an environmental planning ground within the meaning of cl 4.6(3)(b) of LEP 2012, as identified by Preston CJ in Initial Action at [23]. It may not be possible to achieve the full GFA permitted by the FSR development standard on a constrained site containing a building identified as a heritage item.

101. The height of buildings development standard for the site does not envisage four storey development in this R3 zone. There are no sufficient environmental planning grounds identified in the written request to justify the exceedance of the height of buildings development standard. The development of this site is constrained by the retention of the original portion of the dwelling and the topography of the locality, which falls to the east. The proposal is not compatible with the spine of high density residential development along Turramurra Avenue and the reduced scale of development achievable on this site has been recognised in its nuanced zoning and development standards, presumably based on the heritage listing of the dwelling and its position on the site.

The architectural plans are inconsistent with the Court’s requirements

102. The architectural plans comprising the application are inconsistent with the Court’s requirements at Schedule A to the Court’s Class 1 Development Appeals Practice Note. The architectural plans are missing dimensions; there is no site plan in Ex E; and the existing ground level is incorrectly shown on sections based on the levels of the site survey. The eastern parapet on the roof plan is inconsistent with the eastern elevation. The eastern elevation shows the plane of the highest eastern façade across the lift shaft, continuing along the parapet and stepping up on the eastern side of the basement vent and this is not what is shown on the roof plan (Ex E, DA 1.107_04 and DA 2.102_05). All architectural plans should be consistent with each other. The dimensioning on the architectural plans should provide absolute certainty of the building envelope and its set-out in three dimensions. The architectural drawings in Ex E are provided at A3, yet the scale is noted as 1:100 at A2. The architectural plans should be drawn at an appropriate scale and the printed plans should be provided to the Court at an appropriate scale. This issue is not determinative because it could have been rectified by a direction, but nevertheless, it is in an applicant’s best interest to provide clear, unambiguous architectural plans to the Court.

Conclusion

103. The heritage item identified by LEP 2012 is the dwelling house on the site.

104. The proposal is prohibited development under LEP 2012 because it does not satisfy the requirements of cl 5.10(10) of LEP 2012. The proposal would adversely affect the heritage significance of the heritage item and its setting and it would have a significant adverse effect on the amenity of the surrounding area. I am not satisfied that the proposal is consistent with the requirements of cl 5.10(10)(d) and (e) of LEP 2012 and as a consequence, the proposal is prohibited development under LEP 2012.

105. The height of buildings development standard for the site applies to the proposal and I am not satisfied that the applicant’s written request to contravene the height of buildings development standard has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The environmental planning grounds identified by the applicant’s written request are not sufficient to justify contravening the development standard.

Orders

106. The orders of the Court are:

1. The applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E.

2. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.

3. The appeal is dismissed.

4. Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking, at 2 Nulla Nulla Street, Turramurra, is refused.

5. The Exhibits, other than Exhibits 1 and 2, are returned.

____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 11 May 2021