Knox v Ku-ring-gai Council

Case •

[2021] NSWLEC 1722

•

03 December 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Knox v Ku-ring-gai Council [2021] NSWLEC 1722
Hearing dates: 5, 6 and 14 October 2021
Date of orders: 3 December 2021
Decision date: 03 December 2021
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

(1) The Applicant is granted leave to rely on amended plans

(2) The appeal is upheld;

(3) Development Application DA0081/20 seeking consent for demolition of existing structures and construction of a two-storey dwelling is determined by the grant of consent, subject to the conditions at Annexure A of this judgment;

(4) The exhibits are returned, with the exception of Exhibits A and 1.

Catchwords:

DEVELOPMENT APPLICATION – proposed development in a heritage conservation area - demolition of a non-contributory building – whether proposed dwelling is acceptable in the context of the heritage conservation area - whether proposed dwelling is acceptable in the context of an adjacent heritage item – consideration of competing conditions.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7(1)

Environmental Planning and Assessment Regulation 2000, cll 55(1), 77

Ku-ring-gai Local Environment Plan 2015, cll 2.3, 5.10, 6.5

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Cases Cited:

Form Architects (Aust) Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1107

Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66

Texts Cited:

Heritage Office and Department of Urban Affairs & Planning, NSW Heritage Manual 1996

Ku-ring-gai Community Participation Plan 2020

Ku-ring-gai Development Control Plan 2021

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy, April 2021

Category:Principal judgment
Parties: Jennifer Knox (Applicant)
Ku-ring-gai Council (Respondent)
Representation:

Counsel:
N Eastman (Applicant)
C Shaw (solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Shaw Reynolds Lawyers (Respondent)
File Number(s): 2021/166501
Publication restriction: No

Judgment

  1. COMMISSIONER: Jennifer Knox (the Applicant) has appealed the refusal by Ku-ring-gai Council (the Respondent) of her development application DA0081/20, made with owner’s consent, seeking consent for the demolition of existing structures and construction of a two storey dwelling (the Proposed Development) at 8 Wahroonga Avenue, Wahroonga (the Subject Site).

  2. The Subject Site is zoned R2 low density residential under the provisions of cl 2.3 of Ku-ring-gai Local Environmental Plan 2015 (KLEP). The Proposed Development is a permissible form of development on the Subject Site.

  3. The Subject Site is not, and does not contain, a heritage item, but it is located within the Wahroonga Conservation Area (WCA) and is located adjacent to heritage items at 10 Wahroonga Avenue, a dwelling house known as “Fairacre” and 36 Braeside Street. It is also in the vicinity of a heritage item at 38 Braeside Street.

  4. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The hearing is conducted pursuant to s 34AA of the Land and Environment Court Act 1979 (the LEC Act), following a conciliation conference between the Parties over which I presided.

  5. The contentions in the appeal were not resolved in the conciliation phase of the s 34AA proceedings which was terminated, and the matter proceeded to hearing forthwith.

  6. Due to the COVID-19 pandemic, and consistent with the Court’s COVID-19 Arrangements Policy no site inspection was undertaken during the hearing which was conducted by Microsoft Teams.

  7. At the commencement of the hearing the Applicant indicated that it would seek to rely on amended plans and other documents forming part of its development application in the proceedings, which it said were responsive to the contentions in the proceedings.

  8. These included the Applicant’s provision of an updated BASIX certificate ((No. 1246241S_02 dated 4 October 2021) and NatHERS certificate (No. 006643449 dated 1 October 2021) to reflect its amended plans.

  9. The Respondent Council as the relevant consent authority advised that it agreed to the Applicant amending its development application. In response to directions made by the Court, the Respondent has advised that it had uploaded the Applicant’s amended plans to the NSW Planning Portal confirming that the Applicant’s development application had been amended.

  10. The Applicant has formally filed the amended plans with the Court to facilitate the Court’s determination of the application.

Notifications and objector submissions

  1. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and of Ku-ring-gai Community Participation Plan 2020, the Proposed Development was placed on public exhibition by the Respondent between 9 April 2020 to 9 May 2020. One submission was received that raised concerns in relation to stormwater management.

  2. No objectors sought to make representations to the Court during the hearing in relation to the appeal, but one letter of support for the Proposed Development, from the owner of an adjoining property, was tendered at the hearing.

Contentions

  1. At the commencement of the hearing, the Parties advised that certain of the contentions in the appeal were resolved on the basis of the Applicant’s amended plans and the joint reports of the expert planners, Mr Scott McInnes, for the Respondent, and Mr Andrew Minto, for the Applicant.

  2. The expert planners provided short oral evidence at the hearing confirming the resolution of the following matters:

  1. a contention concerning the provision of solar access in relation to which the expert planners agreed that the Proposed Development, as amended, now provided a compliant level of solar access, as required under the provisions of Part 4C.5 of Ku-ring-gai Development Control Plan 2021 (KDCP). This had been confirmed by both the Applicant’s amended plans, which provided additional windows, and the Applicant’s view-from-the-sun diagrams.

  2. a contention relating to overlooking and privacy in relation to the heritage items on adjacent properties which would be resolved through:

  1. the imposition of a condition of consent, identified as proposed condition 15, as follows:

“15 Privacy

Prior to the issue of any Construction Certificate, plans and specifications shall be submitted to the Certifier demonstrating compliance with the following:

• The proposed privacy screen for the first floor balcony (bedroom 1) shall have a height of 1.7 metres above the finished floor level (FFL). The privacy screen shall be fixed and use vertically proportioned slats to prevent downward looking. The privacy screen shall be constructed of a durable material, integrated and designed to prevent overlooking of the tennis court at 36 Braeside Street, Wahroonga.

• The sill height of the window located within the northern elevation of the proposed sunroom must have a minimum sill height of 1.6 metres above the finished floor level (FFL) and must be openable to satisfy BCA ventilation requirements.

Reason: To ensure that privacy is maintained to the adjoining property at 36 Braeside Street and 10 Wahroonga Avenue, Wahroonga.”

  1. the imposition of a condition of consent, identified by the expert planners in their joint report, as proposed condition 25, requiring a further amendment being made to the Applicant’s landscape plan to ensure that landscaping, as follows:

“25 Amendments to approved landscape plan

Prior to the issue of any Construction Certificate, the Certifier shall be satisfied that the approved landscape plan(s), listed below and have been amended in accordance with the requirements of this condition as well as other conditions of this Development Consent:

Plan no.

Drawn by

Dated

L-01F (Issue F)

Site plan Site Design + Studios

03/09/2021

L-02F (Issue F)

Front landscape plan Site Design + Studios

03/09/2021

L-03F (Issue F)

Rear landscape plan Site Design + Studios

03/09/2021

L-04 (Issue F)

Planting details Site Design + Studios

03/09/2021

The above landscape plan(s) shall be amended as follows:

The four Elaeocarpus Eumundi “Smooth barked quandong” proposed in the northern side setback opposite the sunroom and sitting are to be replaced with 4 x Pyrus calleryana ‘Capital’ min 45 litre at planting.

Prior to the issue of any Construction Certificate, the Certifier shall be satisfied that the landscape plan has been amended as required by this condition. An amended plan, prepared by a landscape architect or qualified landscape designer, shall be submitted to the Certifier.

Reason: To ensure adequate landscaping of the site.”

  1. the Parties agreed that two further bullet points should also be added to the expert planners proposed condition 25 (above), later identified in the Parties’ competing proposed conditions as proposed condition 27, as follows:

“The two 5000 litre water tanks are to be relocated to the southern side of the dwelling adjacent to the family and dining area;

The landscape plans are to be amended to reflect the changes to Architectural plans, dated 01/10/21 (Revision J2.2).”

  1. contentions concerning setbacks, in relation to which the planners were satisfied that the Proposed Development complied with the provisions of Part 4A.2 of KDCP, but there remained a heritage related setback contention in relation the provisions of Part 19F.2 of KDCP (see below (at [20(3)(e)(ii)]). This will be considered in relation to the remaining contention concerning the acceptability of the Applicant’s proposed replacement dwelling (see below (at [15(2)]).

  2. a contention concerning the acceptability of the Applicant’s BASIX and NatHERS certificates, see above at [8]), in relation to which the expert planners agreed were acceptable subject to:

  1. the Applicant’s landscape plan providing for 1,080m2 of to be planted with indigenous or low water use species; and

  2. the roof tile colour to be confirmed as being medium colour consistent with the Applicant’s NatHERS certificate.

  1. The Parties further agreed that the remaining contentions in the appeal concerned heritage matters and in particular:

  1. whether the Applicant’s proposal to demolish the existing building on the Subject Site was acceptable; and

  2. whether the Applicant’s proposed replacement building was acceptable within the context of the WCA and in particular in relation to the heritage item, “Fairacre”, adjoining the Subject Site at 10 Wahroonga Avenue.

  1. The Court was assisted in its considerations of these contentions by the evidence of the Parties heritage experts, Ms Vanessa Holtham for the Respondent, and Mr John Oultram for the Applicant.

Statutory context

Environmental Planning and Assessment Act 1979

  1. Section 4.15(1) of the EP&A Act provides that:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

  1. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

…

Ku-ring-gai Local Environmental Plan 2015

  1. The following provisions of KLEP are of relevance in this appeal:

  1. Clause 2.3 concerning zone objectives and land use table, and in relation to which:

  1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

  2. the Subject Site is zoned R2 Low Density Residential, the objectives of which are:

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

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

To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

  1. Clause 5.10 concerning heritage conservation provides relevantly for in relation to the current appeal as follows:

Objectives

The objectives of this clause are as follows –

(a) to conserve the environmental heritage of Ku-ring-gai,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

Requirement for consent Development consent is required for any of the following –

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) -

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area,

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land—

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land -

(i) on which a heritage item is located or that is within a heritage conservation area, or

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

When consent not required

However, development consent under this clause is not required if –

(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development -

(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) the development is in a cemetery or burial ground and the proposed development—

(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d) the development is exempt development.

Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

Heritage assessment

The consent authority may, before granting consent to any development –

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

Ku-ring-gai Development Control Plan 2021

  1. The Proposed Development is subject to the provisions of KDCP, and relevantly those within:

  1. Part 4 in relation to Dwelling Houses, and in particular Part 4C.5 concerning solar access which includes the following objectives and controls of relevance in this appeal:

“Objective

1 To ensure the design and siting of new development maintains a reasonable level of daylight and sunlight to habitable rooms, private open space, and solar collectors of new and neighbouring development.

Controls

1 Solar access to habitable areas, recreational space and solar collectors on the site and on neighbouring sites is to be preserved by:

consideration of siting and orientation of buildings;

use of setbacks which increase with building heights;

landscape design and location of vegetation including deciduous or tall trees;

3 Dwelling design and orientation is to provide at least 4 hours between 9am and 3pm on 21st June to north facing windows and all living areas (family rooms, rumpus, lounge and kitchen) and the principal private open space including swimming pools and patios, to the proposed dwelling.

6 Professionally prepared Shadow Diagrams must accompany all applications for new dwellings and alterations/additions exceeding one storey. Refer to Council’s DA Guide.”

  1. Part 19 in relation to heritage items and heritage conservation areas, which applies to any development that is in a Heritage Conservation Area (HCA), such as WCA, which is identified in KLEP, and in the vicinity of a Heritage Item identified in KLEP, such as those properties identified above (at [3]). The Introduction also notes that the controls in this Part of KDCP are additional to those other sections in KDCP, and where there is inconsistency between the controls in Part 19 and controls in other parts of this DCP, the controls in Part 19 prevail.

  1. Further, Part 19 of KDCP provides guidance to meet the objectives in the KLEP. More specifically, the following provisions of KDCP Part 19 are relevant to the Proposed Development:

  1. The Introduction to Part 19 of KDCP notes that for any works within the above categories, a Heritage Impact Statement (HIS) is required, and any HIS is to be completed by an appropriately qualified and experienced heritage consultant. Applicants are further advised to refer to:

  1. Council’s Heritage Inventory Sheets for Heritage Items and HCAs. p 19-3 Ku-ring-gai Development Control Plan Note: Inventory Sheets have been prepared for each of Ku-ring-gai’s HCAs and are considered by Council when assessing development applications for work within the Heritage Conservation Area. Note: The Inventory Sheets are available via Council’s website

  2. Australia ICOMOS Charter for Places of Cultural Significance 1999 (The Burra Charter).

  3. Council’s DA Guide available on Council’s website

  4. Council’s heritage studies, available on Council’s website and Gordon Library.

  1. The Introduction also provides the criteria for establishing whether or not a property is a contributory property for the purpose of applying controls within Part 19 of KDCP, as follows:

“Contributory Properties are buildings and sites within a HCA which are deemed to exhibit one or more of the following characteristics:

buildings and sites that make an important contribution to the character and significance of the HCA. They can be from a key historical layer, true to an architectural type, style or period, or highly or substantially intact including their garden setting. Where subdivision has occurred, the subdivision is within the key historical period or the area.

buildings and sites which are altered from their original form but are recognisable and could be reasonably reinstated to that condition or the alterations are not considered to be detrimental to the integrity of the building; for example, a building that has been rendered or painted or where the roof cladding has been replaced but the form is otherwise legible.

buildings and sites with new layers/additions sensitive to the style, form, bulk, scale and materials of the original building.

Note: Contributory buildings do not necessarily need to be high-quality buildings but should represent the key historical period of the HCA. An HCA may also contain high-quality buildings which are not necessarily from the key historical period.”

  1. Part 19B.1 in relation to the demolition of structures within a HCA, which included the following objectives and controls:

“Objectives

1 To ensure that sites, buildings and landscape features that contribute to the significance of an HCA are retained.

2 To provide a photographic record before and during major works within an HCA, including demolition.

Controls

1 In accordance with the Ku-ring-gai Local Environmental Plan,

development consent is required for demolishing or moving a

building, work, relic or tree within a conservation area.

2 The demolition of Heritage Items and contributory properties

within HCAs is not supported.

3 Whole demolition of buildings, structures and landscape

features (including significant trees) is generally not

supported unless the applicant can satisfactorily

demonstrate:

i) demolition will not result in any adverse impacts on the

streetscape or character of the HCA;

ii) retention and stabilisation of the building or structure is

unreasonable;

iii) all alternatives to demolition have been considered

with reasons provided why the alternatives are not

acceptable;

iv) the replacement building is compatible with the identified

significance and character of the streetscape and the

HCA as a whole.

4 In considering applications for partial demolition of buildings,

structures and landscape features (including significant

trees) within HCAs, Council will assess:

i) the significance of the building part or structure and/or

landscape feature and whether its retention is considered

necessary;

ii) its contribution to the streetscape;

iii) potential for modifying and/or removing neutral and/or

uncharacteristic elements that would re-establish the

contributory status of the building or structure within the

HCA;

iv) opportunities for adaptive re-use of the building.

5 Council may require reconstruction following any

unauthorised removal of detail or important elements that

contribute to the significance and character of the property

and the HCA.”

  1. Part 19D, concerning development within a HCA as it relates to new dwellings, which includes the following objectives and controls within specific parts of Part 19D:

  1. Part 19D.1 in relation to local character and streetscape which included the following objectives and controls in relation to the Proposed Development:

“Objectives

1 To promote high quality new design that complements the streetscape character and heritage significance of the HCA.

2 To ensure that new development retains the identified historic and aesthetic character of the HCA in which it is situated.

Controls

1 Scale and massing of any new buildings is to be integrated into the established character of the HCA and respect the scale, form and character of adjacent or nearby development. They are to be incorporate design elements such as the roof forms, facade and parapet heights, door, window and verandah proportions of contributory properties in the HCA, particularly neighbouring buildings from the same key development period.

2 The design and character of any new buildings are to be informed by the:

date and style of contributory properties;

scale and form of contributory properties;

street and subdivision patterns of the HCA;

setbacks of neighbouring contributory properties;

materials, building techniques and details used in the HCA; and

views, vistas and skylines in the HCA.

3 Façades are to be modulated to break down the scale of new development.

4 The height of new buildings is not to be higher than contributory properties.

5 New roofs visible from the street are reflect the size, shape, pitch, eaves and ridge heights, and bulk of contributory properties and roofs. They are to respect the complexity and patterns of predominant roof shapes and skylines of the HCA.

6 New buildings may be contemporary in design, however, their scale, form and detail is not to detract from the scale, form, unity, cohesion and predominant character of streetscape elements around it.

7 Where an HCA is characterised by single-storey development, single-storey development on infill sites is preferred. New two-storey houses will only be permitted where the upper floor is designed within the roof and where the new building is in keeping with the height, mass and proportions of contributory properties in the vicinity.”

  1. Part 19F concerning development in the vicinity of heritage items or HCAs which included the following objectives and controls within specific parts of Part 19F:

  1. Part 19F.1 in relation to local character and streetscape, which included the following objectives and controls of relevance to the Proposed Development:

“Objectives

1 To consider the impact on the historic curtilage and setting of the Heritage Item or HCA and related heritage features such as views, streetscape context, historical subdivisions, garden settings, alienated trees and other landscape features.

2 To retain the significance of Heritage Items or HCAs in their settings.

3 To ensure that the scale of new development does not dominate, detract from or compete with Heritage Items or HCAs in the vicinity.

4 To ensure that new development respects and conserves the significance of any nearby Heritage Items or HCA and their settings.

5 To ensure that new development does not visually dominate the adjoining or nearby Heritage Item or HCA.

6 To ensure that the scale of new development in the vicinity of the HCA is in harmony with the streetscape and does not dominate, detract from or compete with the Heritage Item or HCA.

Controls

1 All development in the vicinity of a Heritage Item or HCA is to include a Heritage Impact Statement (HIS). The HIS is to address the effect of the proposed development on a Heritage Item or HCA and demonstrate that the proposed works will not adversely impact upon significance, including any related heritage features within the identified curtilage and setting.

2 Development on sites that either directly adjoin or are in the vicinity of a Heritage Item or an HCA is to have regard to:

the form of the existing building or buildings including height, roofline, setbacks and building alignment;

dominant architectural language such as horizontal lines and vertical segmentation;

proportions including door and window openings, bays, floor-toceiling heights and coursing levels;

materials and colours;

siting and orientation;

setting and context;

streetscape patterns.

4 New development in the vicinity of a Heritage Item or HCA is to demonstrate that it will not reduce or impair important views to and from the Heritage Item from the public domain.”

  1. Part 19F.2 concerning building setbacks, which included the following objectives and controls of relevance to the Proposed Development:

“Objectives

1 To ensure new work in the vicinity of a Heritage Item or HCA respects and contributes to the established streetscape patterns through careful siting of new buildings.

2 To ensure new development provides an interface of scale and bulk to preserve the amenity to the adjacent Heritage Item or building within a HCA.

Controls

1 The front setback of development adjacent to a Heritage Item or buildings within an HCA is to be greater than that of the Heritage Item or building within the HCA. Where variations in setbacks exist, the larger setback will apply.

3 In addition to the side and rear setback controls in Section A of this DCP, new development adjacent to a Heritage Item or building within an HCA, is to comply with the following:

adjacent developments are to have a minimum 12m building separation to the Heritage Item or building in the HCA (more if setback requirements are not met within the 12m) as per Figure 19E.3-1;

adjacent development is to not exceed a facade height of 8m from existing ground level, including balustrades;

adjacent development with a building mass above 8m high from existing ground level is to be stepped back an additional 6m from the Heritage Item as per Figure 19E.3-1;

Where variations in setbacks exist the larger setback will apply.”

  1. Part 23, in relation to general building design and sustainability, which provides a consistent area wide approach to issues that developments must address, including, but not limited to, various aspects of sustainability, amenity, and quality streets and public areas.

  2. Part 24, in relation to water management, which facilitates development in achieving the requirements of cl 6.5 of KLEP in relation to Stormwater and Water Sensitive Urban Design.

Contentions

  1. The remaining contentions in the appeal were identified above (at [15]) and resolution of those contentions requires the Court to consider two questions concerning heritage matters as follows:

  1. is the Applicant’s proposal to demolish the existing dwelling on the Subject Site acceptable?

  2. is the Applicant’s proposed replacement dwelling appropriate given the location of the Subject Site within the WCA and adjacent to the heritage item at 10 Wahroonga Avenue.

  1. In addressing these questions, I note that, consistent with the provisions of cl 5.10(5) of KLEP, and consistent with the provisions of Part 19 of KDCP (see above (at [20(3)(a)]), the Applicant’s heritage expert, Mr Oultram, had prepared a heritage impact statement (HIS) which:

  1. had concluded in relation to the proposed demolition of the existing dwelling on the Subject Site:

  1. the existing dwelling would not meet any of the NSW Heritage Manual criteria for identification as a place of local significance and could not be considered a contributory element in the conservation area to the date of its construction and the poverty of its detail;

  2. the existing house on the subject site is of no discernible style and has no features of note, has no architectural merit and has no heritage significance.

  3. there are no heritage considerations that would preclude the demolition of the existing house;

  1. had further concluded that:

“Overall we consider that the proposals are a well-mannered design that paid you regard to the current site conditions and the wider setting of the house in an established conservation area.

The proposed dwelling is well considered and draws on the design cues from the one and two story, period houses in the immediate vicinity. It is well cited on the lot and presents a limited frontage to the Heritage item to the north.

The building is well articulated and is in an appropriate, hipped and gabled form and adopts the materials commonly found in the conservation area.. The works include the retention of large gardens to the front and rear retaining the landscape setting to the house and street.

We consider that the proposals will have a limited impact on the surrounding conservation area and the Heritage item in the vicinity and are largely in accordance with the Heritage objectives and controls of the KDCP.”

  1. had recommended the Proposed Development should provide for:

  1. greater consideration of period typologies in the area; and

  2. a more sympathetic selection of materials based on those commonly seen in the area.

  1. had more specifically concluded the following in relation to aspects of the design of the Proposed Development:

  1. the building location, which it said included “a good setback to the front in line with No. 10 Wahroonga Avenue and retains a large garden at the front and rear”;

  2. the scale and height of the building and concerning which it noted that “two storey is reasonable as there are (a) large number of two storey houses in the street and neighbourhood.”

  3. the form and massing of the building and concerning which it noted that “the house is well articulated with hipped roofs and (a) single storey sections at the sides and rear. However, the design would benefit from a greater consideration of period typologies in the area”;

  4. the garage, and concerning which it noted that “the DCP generally does not support garages fronting (the) street though in this instance the garage is set well back from the street and is in the current location of the garage. Attached garages are common in the area”;

  5. proposed materials, and concerning in relation to which it noted that “render is used in the area but use of brick would lesson scale. Upper section could be in render above the string course to window cills (sic). The roof should be in terracotta tile not concrete”;

  6. the front elevation, and concerning which it noted that:

  1. the elevation is too busy and needs regularising;

  2. the use of a verandah is good as it helps to break up the scale of the building but the stone cladding is uncharacteristic of the area;t

  3. the south elevation is too plain and the use of brick would assist to improve the presentation of the front elevation

  4. the north elevation is overly complex but simple changes may assist to improve this elevation.

Is the Applicant’s proposal for demolition of the existing dwelling acceptable?

  1. The Respondent submitted in opening that:

  1. pursuant to the provisions of Part 19B.1 of KDCP the demolition of heritage items and contributory properties within a HCA, such as WCA, is not supported;

  2. for the purposes of KDCP, contributory buildings do not necessarily need to be of high quality to represent a key historical period of the HCA;

  3. based on the written evidence of Ms Holtham within the joint expert report she prepared with Mr Oultram, demolition of the existing dwelling on the Subject Site should not be approved;

  1. The Applicant had submitted that:

  1. the potential impact of the Proposed Development on the HCA and on the heritage items in the vicinity of the Subject Site were discussed in the HIS prepared by Mr Oultram (see above at [22]);

  2. the listing sheets for the heritage items in the vicinity of the Subject Site contained no assessments or statements of significance noting only “Reasons for listing; cultural architectural, municipal significance”;

  3. conservation areas require a critical mass of heritage items or contributory items to provide an over-arching character, otherwise they would not display the relative level of consistency required for their establishment. Mr Oultram’s HIS provided examples of two HCAs, Haberfield and Appian Way in Burwood that are recognised for their consistency in terms of characteristic buildings and building periods;

  4. a primary consideration for HCAs is the consistency of the area in terms of its built character and period of development with the definition of a characteristic building period being essential and often related to the early development in the area following subdivision (unless estates developed very slowly), to facilitate the clear definition of characteristic buildings;

  5. for the WCA stretching this period from the Federation to the late Twentieth Century, and even into the 21st century, would inevitably lead to the inclusion of later period houses that may have paid no regard to previous styles particularly as many of these developments would be infill developments on undeveloped or subdivided sites;

  6. the decision of O’Neill C in Form Architects (Aust) Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1107, hereafter referred to as (‘Form Architects’), had correctly identified (at [31]) that the assessment of potential impacts on a HCA of the proposed demolition of the existing building should not be made without “any reference to objective criteria” lest it produce an “indefensible arbitrariness”, which ought to be rejected. The Applicant said that the Respondent had undertaken an assessment in these proceedings that was of the form identified by O’Neill C, as incorrect and flawed, and said that the existing building on the Subject Site was objectively not contributory, by reference to material prepared by Mr Paul Davies in the establishment of the HCA, which was tendered as evidence at the hearing;

  7. in terms of the heritage items surrounding the Subject Site:

  1. the dwelling on 38 Braeside Street is separated from the Subject Site by an intervening development at 6 Wahroonga Avenue;

  2. the rear elevation of 36 Braeside Street faces the rear garden to the Subject Site and this house is set away from the location of the Proposed Development;

  3. the Proposed Development would have no impact on views to and from these items and would have no impact on their garden settings;

  4. the property at 10 Wahroonga Avenue, known as “Fairacre”, includes a high quality house set in well landscaped grounds, and while the Proposed Development would increase the scale of development adjacent to Fairacre, this would not be to the point where it would overwhelm the heritage item because:

  1. the side setbacks to both properties are adequate to assist in this regard;

  2. the two properties would have similar front setbacks;

  3. the Proposed Development would retain a large, landscaped garden on the Subject Site;

  4. the development would have no impact on views to and from Fairacre and a very limited visual impact on its garden and its wider setting.

  1. The heritage experts, Ms Holtham and Mr Oultram, had provided the following written evidence in their joint expert report in relation to the Applicant’s proposed demolition of the existing dwelling on the Subject Site:

  1. Mr Oultram had reiterated the views he had expressed within the HIS submitted by the Applicant with its development application (see above at [22]), including that the existing house was not a contributory element in the WCA, and the Applicant’s proposed replacement dwelling was of sufficient quality that it would fit well into the context of the WCA;

  2. Ms Holtham had stated within the joint expert report prepared with Mr Oultram that:

  1. the existing dwelling on the Subject Site makes a positive contribution to the streetscape and the wider WCA and is an identifiable post-war building period forming part of the mid to late 20th century layer within the HCA, and which is a common characteristic of the WCA;

  2. the demolition of the existing dwelling on the Subject Site would contribute to the incremental erosion of a valid historic layer in the HCA and should not be supported in the absence of a proposed replacement of high calibre, designed in response to what she identified as the rich heritage context of the WCA;

  3. the retention of the existing dwelling on the Subject Site would not be an unreasonable prospect given the size of the Subject Site. It could accommodate applications to bring the property up to the Applicant’s desired standard without what she said were adverse heritage impacts.

  1. In oral evidence Ms Holtham added that:

  1. she acknowledged that a report by Heritage Consultant, Mr Paul Davies, tendered as evidence at the hearing as Exh C, had identified that the current dwelling on the Subject Site was uncharacteristic of the HCA; but

  2. Council no longer used that terminology and had more recently reviewed its status as being a neutral building in the WCA; and

  3. she agreed that it was not a contributory item, although she said that it was a building that was representative of what she termed “a key period”.

  1. In closing, the Applicant:

  1. drew the Court’s attention once more to the judgment of my colleague Commissioner O’Neill in Form Architects (see above at [24(6)]);

  2. reiterated that the opinions provided by Ms Holtham were of a similar type to those identified by Commissioner O’Neill in Form Architects as introducing an indefensible arbitrariness to the assessment of buildings within a HCA, and should not be relied upon by the Court;

  3. further submitted, relying on the evidence of Mr Oultram and the HIS prepared by him, that because the existing dwelling on the Subject Site was not a contributory item, the tests for proposed demolition of a contributory building as identified by Moore C, as he was then, in Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (‘Helou’), did not apply to the Proposed Development and demolition of the existing dwelling, as proposed, was acceptable.

  1. The Respondent submitted in closing that, notwithstanding that the existing dwelling on the Subject Site may not be a contributory property within WCA:

  1. it did exhibit contributory elements which made an indirect positive contribution to the WCA and was reflective of an emerging style in the area; and

  2. a precautionary approach ought to be applied to the Applicant’s proposal to demolish the existing dwelling and it should be retained for reasons advanced by Ms Holtham in the joint report prepared with Mr Oultram and in her oral evidence.

  1. Having considered the evidence of the heritage experts and the submissions of the Parties, I am satisfied that the Subject Site including the existing building thereon, is not a contributory property for the purposes of applying the controls within Part 19 of KDCP because:

  1. based on the recognition of the property as uncharacteristic in the report prepared by Mr Paul Davies, and as a non-contributory property in the estimation of Mr Oultram, and as neutral in the estimation of Ms Holtham, the property does not, in my assessment, make an important contribution to the character and significance of the HCA as required under the first of the criteria for recognition as a contributory property for the purposes of KDCP;

  2. the existing building on the Subject Site is not one that has been altered, and so could be returned to a better original form, such that it might satisfy the second of the criteria to be considered a contributory property for the purposes of KDCP; and

  3. the building on the Subject Site is not one that includes new layers/additions sensitive to the style, form, bulk, scale and materials of an original building on the Subject Site, and so does not satisfy the third of the criteria for identification as a contributory property for the purposes of KDCP.

  1. Further, I agree with the submission of the Applicant that:

  1. the Respondent’s submission that the building warranted retention based on Ms Holtham’s assessment that it contained contributory elements, is insufficient to justify its retention, as this assessment is of the type identified by Commissioner O’Neill in Form Architects (see above at [27(1)]) that ought not be relied upon; and

  2. the evidence of Mr Oultram (noted above at [25(1)]) in support of the Proposed Development, which requires demolition of the existing dwelling, and in which he confirms that the existing dwelling is not a contributory item in the WCA, should be preferred for reasons he provides, which I adopt.

  1. As the existing building is not, in my assessment, a contributory property for the purposes of KDCP, I am also satisfied that it is not necessary to apply the planning principle, and associated tests, in Helou (see above at [27(3)]).

  2. I am further satisfied that the proposed demolition of the existing dwelling on the Subject Site is acceptable and its demolition is consistent with the objectives of Part 19B.1 of KDCP (see above at [20(3)(c)]) in relation to the approval of demolition of buildings in a HCA for reasons provided above, and because the existing dwelling on the Subject Site does not, in my assessment, contribute to the significant of the WCA.

  3. I note that each of the Parties’ proposed conditions of consent include a proposed condition 6 that requires the archival recoding of the existing dwelling on the Subject Site as required under the objectives of Part 19B.1 of KDCP.

Is the Applicant’s proposed replacement dwelling appropriate given the location of the Subject Site within the WCA and adjacent to the heritage item at 10 Wahroonga Avenue?

  1. The Applicant’s Proposed Development includes construction of a dwelling that the Applicant’s heritage expert, Mr Oultram, described within the HIS, which he authored, as follows:

  1. a two storey built form which would be located within the context of other two storey, period and modern developments in the immediate area, with hipped and gabled roofs and articulated elevations incorporating a single storey verandah to the front, and using materials including brick, render and terracotta tile, that in the Applicant’s view is appropriate for the HCA;

  2. a dwelling that:

  1. takes cues from other one- and two-storey dwellings in the vicinity of the site such as those at 5 Wahroonga Avenue and 31 Kintore Street being simple, two storey, Post War and late Twentieth Century houses;

  2. includes single storey elements to the front, side and rear to provide articulation to the proposed built form;

  3. is of a hybrid Edwardian style and including traditional elements such as the gable to the street and a single storey verandah to the front;

  4. is centrally positioned on the Subject Site, consistent with the location of the existing dwelling;

  5. includes similar setbacks to the existing dwelling in relation to the front and side boundaries, and a large setback to the rear to allow for well-landscaped gardens;

  6. Includes a hipped and gabled roof form that seeks to marry in with the common detail of other homes in the area;

  7. is well articulated to the front, sides and rear with a verandah to the street and projecting bays, single storey elements, outdoor rooms and balconies;

  8. includes vehicle access arrangements consistent with existing vehicle access arrangements on the Subject Site

  9. includes a presentation in face brick, render and terracotta tiles that are materials commonly seen in the area and that provide an easy fit into the surrounding HCA;

  10. retains large, well-landscaped gardens to the front and rear that reflect a common characteristic of the conservation area.

  1. The Applicant noted that the design of the Proposed Development had been further amended in response to the recommendations made by Mr Oultram within the HIS and contentions raised by the Respondent, and now included:

  1. skylights to assist in the provision of solar access to certain areas at the rear of the Proposed Development;

  2. amendments to the form of certain windows; and

  3. amendments to landscaping to assist in mitigating certain potential impacts.

  1. Consideration of whether the design of the Applicant’s proposed dwelling is acceptable requires considering of two matters:

  1. its acceptability in the context of the WCA; and

  2. its acceptability in relation to the adjacent heritage items, Fairacre, at 10 Wahroonga Avenue.

  1. I will address each of these considerations in turn.

Is the Applicant’s proposed dwelling acceptable within the context of the WCA?

  1. Part 19 of KDCP includes an objective that new development in the vicinity of heritage items and HCAs respect the heritage context and is sympathetic in terms of form, scale, character, bulk, orientation, setback, colours and textures, and does not mimic or adversely affect the significance of heritage items or HCAs and their settings;

  2. The Respondent had contended, relying on the evidence of Ms Holtham, that the Applicant’s proposed new dwelling for the Subject Site was inadequately responsive to this objective.

  3. In her evidence within the joint report of the heritage experts, Ms Holtham had stated that other dwellings within the HCA had reduced the visual prominence of their upper storeys within their roof forms, mitigating the bulk of their presentation to the street. She Also said that the visual catchment of the area in which the Proposed Development would be located is dominated by a landscape character with modest, low rise, dwellings, and the existing dwelling’s low-lying and subservient stature enhanced the presentation of the adjoining heritage item, Fairacre.

  4. However, Ms Hotham had also acknowledged the presence within the HCA of the occasional two-storey development of a similar style to that proposed by the Applicant, and she noted that while the Applicant’s HIS had made recommendations to ameliorate potential design impacts, she was unsure as to whether these had been adopted.

  5. Finally, Ms Holtham had noted that an appropriate development on the Subject Site should respond to the form of the development on either side, possibly by introducing single storey elements and steeper gable roof forms to lessen what she said was a box like appearance. She also proposed that the location of the garage should be changed, and the proposed entry portico should be deleted, to lessen what she said was the dominance of these elements in the presentation of the proposed replacement dwelling.

  6. Within his evidence within the joint report of the heritage experts, Mr Oultram had said that the HCA is characterised by both one and two-storey dwellings, and that the Subject Site currently contains a two storey dwelling to its north, that being the heritage item at 10 Wahroonga Avenue.

  7. He further noted that the provisions of KDCP do “not do not prohibit a two-storey built form where the character of the area is not characterised by single storey development”.

  8. At the hearing, Mr Oultram, in response to questions from the Respondent, said that the design of the Applicant’s proposed dwelling now included the changes recommended within the HIS he had prepared, including:

  1. modifications to the southern elevation, including the provision of additional windows and a widening of the roof hip elements;

  2. the use of brick as a principle element of the building façade, including the lower part of the façade, although he noted that this was not as clearly discernible on the Applicant’s plans as is intended, but that this design element had been confirmed as the intent of the plans within a supplementary joint report of the heritage experts;

  3. modifications to the presentation of the garage, which he noted was not proposed to be multi-patterned and the presentation of which could be further modified through a condition of consent, if required; and

  4. red textured terracotta tiles, the specific specifications of which could be confirmed through application of a deferred commencement condition requiring preparation of a survey of local roof materials and recommendations for the Proposed Development for Council approval, if required, consistent with the recommendations of the heritage experts in their supplementary joint report;

  1. Further, in response to questions from the Applicant, Mr Oultram:

  1. acknowledged that, while properties referred to in his HIS as providing cues for the design of the Applicant’s proposed dwelling were outside the WCA, those dwellings, including some on the opposite side of Wahroonga Avenue, nevertheless provided context for the Proposed Development;

  2. said that the Applicant’s proposed dwelling was designed with a height below that of the heritage item at 10 Wahroonga Avenue and maintained setbacks to that dwelling, in order to respect the context of the heritage item;

  3. noted that, while he had recommended the use of terracotta tiles for the Applicant’s proposed dwelling, there were some 30 different types of terracotta tiles available in the market and in his opinion, it was appropriate to impose a condition of consent requiring the Applicant to undertake a survey of roof tiles in the area and based on the findings of the survey, to recommend a final roof tile selection for approval of the Respondent Council;

  4. notwithstanding his support for a survey to be undertaken, he opined that a red textured terracotta tile would be appropriate.

  1. The Applicant submitted that the Proposed Development:

  1. draws on the local context, as stated by Mr Oultram in his evidence;

  2. is of a comparable two-storey form to other dwellings in the area;

  3. retains good setbacks to all of its boundaries;

  4. is proposed to include the use of materials that are commonly seen in the HCA;

  5. includes facades that are modulated and would have a height that does not exceed that of the heritage item, Fairacre, to the north;

  6. provides for a traditional hipped and gable roof form with appropriate complexity; and

  7. has a scale and form that would not detract from the scale, form, unity and cohesion of the predominant character of the HCA.

  1. The Applicant concluded by observing that the location of the garage within the proposed dwelling was in the same location as that in the existing dwelling, and that the materials and finishes of the proposed dwelling were largely agreed between the Parties and their experts, other than in respect of the selection of the roof tile profile and colour.

  2. In relation to this, the Applicant said that it would accept imposition of a deferred commencement condition in relation to the completion of a survey of roof tiles in the area, prior to the identification of a final roof tile selection and its approval by the Respondent.

  3. In its closing remarks, the Respondent submitted that:

  1. the Applicant’s proposal for the imposition of a deferred commencement condition concerning the selection of roof tiles should not be adopted because it would defer the question of the effect of the Proposed Development on the heritage significance of the HCA. The Respondent also observed that:

  1. it was well settled law that imposition of a deferred commencement consent is not a panacea to overcome the necessity to consider a requisite matter; and

  2. the deferred commencement provisions of the EP&A Act did not free the consent authority from the obligation to consider all relevant matters as required;

  1. the scale of the replacement dwelling proposed by the Applicant was significantly larger than that of the dwellings on the adjacent lots to its north and south, and it was not properly considered in the manner required under the provisions of Part 19D.1 of KDCP (see above at [20(3)(d)(i)]);

  2. the design of the proposed Development was not of sufficient quality and was not an adequate replacement for the existing dwelling which is proposed to be demolished by the Applicant;

  3. any replacement dwelling proposed for the Subject Site should add to the HCA rather than having a limited impact as had been Mr Oultram’s assessment of its potential impact on the HCA;

  4. the design of the Applicant’s proposed dwelling was not responsive to the requirements of Part 19F of KDCP (see above at [20(3)(e)]), including that the complexity of its roof lines were inconsistent, and should be “less busy”;

  5. the following matters remained of concern:

  1. consistent with the evidence of Ms Holtham, the Applicant’s proposed dwelling would not add to the heritage values of the HCA and its cumulative impacts would erode the context of both the HCA and the heritage item at 10 Wahroonga Avenue, separating it from the broader HCA; and

  2. the design of the building which it said was of institutional form and which included a plinth of between 900mm and 1.2m, which was said to be significant on the western (rear) elevation;

  1. the amount of solar access to the kitchen in the proposed dwelling which was inadequate notwithstanding that the Proposed Development satisfied the relevant solar access controls in KDCP;

  2. for the reasons provided above, the Applicant’s proposed dwelling was not of high quality and should be refused.

  1. Having considered the evidence of the experts, and the submissions of the Parties, I am satisfied that the Applicant’s proposed replacement dwelling is acceptable in the context of the WCA for the reasons provided by the Applicant, supported by the evidence of its heritage expert, Mr Oultram, (see above at [43], to [46], which I adopt, and because, in my assessment:

  1. the Proposed Development satisfies the provisions of Part 19D.1 of KDCP, and achieves the controls of that Part of KDCP, including:

  1. the scale and massing of the replacement dwelling would integrate into the established character of the HCA and it respects the scale, form and character of adjacent or nearby development, notably that of the heritage item at 10 Wahroonga Avenue;

  2. it incorporates design elements such as the hip and gable roof form, an adequately articulated façade, with appropriate materials and finished, and has a parapet height that is appropriate for its setting;

  3. the doors, windows and verandah proportions of contributory properties in the HCA, particularly the neighbouring heritage item, have been well considered in the design of the Proposed Development;

  4. the design and character of the Proposed Development has been informed by the features identified in control 2 of Part 9D.1, as confirmed through the evidence of the Applicant’s HIS:

  5. the façades of the Proposed Development are modulated and break down the scale of Applicant’s proposed replacement dwelling;

  6. the height of the new dwelling is not higher than contributory property on the adjacent lot to its north;

  7. the roof of the proposed Applicant’s replacement dwelling, which is visible from the street, reflects, in my assessment, the size, shape, pitch, eaves and ridge heights, and bulk of the contributory property on the adjacent lot to the north and the roofs of other contributory buildings in the HCA;

  8. the roof of the Applicant’s proposed replacement dwelling respects, to my satisfaction, the complexity and patterns of predominant roof shapes and skylines of the HCA;

  9. while the Applicant’s proposed replacement dwelling is not of contemporary design, its scale, form and detail does not detract from the scale, form, unity, cohesion and predominant character of streetscape elements in the area of the Subject Site;

  10. notwithstanding that the WCA is not characterised by single-storey development, the Applicant’s proposed two-storey dwelling includes an upper floor designed within the roof form and it is in keeping with the height, mass and proportions of the heritage item on the adjacent lot to the north;

  1. on the basis of my findings above (at [(1)]), I am satisfied that the Proposed Development achieves the objectives of Part 19D.1 of KDCP, and the Proposed Development, if approved, would:

  1. promote high quality new design that complements the streetscape character and heritage significance of the WCA; and

  2. retain the identified historic and aesthetic character of the WCA in which the Subject Site is situated.

  1. the Proposed Development is responsive to the requirements of Part 19F of KDCP, and in particular:

  1. the Applicant has included a HIS which has addressed the effect of the Proposed Development on the HCA and it has demonstrated, to my satisfaction, that:

  1. the Proposed Development will not adversely impact upon significance of the HCA, noting that I address the matters concerning the curtilage of the adjacent heritage item below

  1. as demonstrated by the Applicant’s HCA, the Proposed Development achieves the objectives of Part 19F of KDCP because it:

  1. has considered the impact of the Proposed Development on the historic curtilage and setting of the HCA and related heritage features such as views, streetscape context, historical subdivisions, garden settings, alienated trees and other landscape features

  2. will retain the significance of HCA in its settings noting that the front landscaping is proposed for retention;

  3. the scale of Applicant’s proposed replacement dwelling will not dominate, detract from or compete with the adjacent heritage items or the HCA;

  4. the Applicant’s proposed replacement dwelling does respect and conserve the significance of the adjacent heritage item and the WCA, and the settings of these;

  5. the Applicant’s proposed replacement dwelling will not visually dominate the adjoining heritage item or the HCA; and

  6. the scale of the Applicant’s proposed replacement dwelling will be in harmony with the streetscape and would not dominate, detract from or compete with the adjacent heritage item nor the HCA in which the Subject Site is located.

  1. Finally, I agree with the Applicant that the final matter requiring confirmation in the design of its proposed replacement building, that is the roof tile selection, should be the subject of the Applicant’s proposed deferred commencement condition. I note the evidence of Mr Oultram (see above at [46(3)]), which I accept, that the use of terracotta roof tiles was recommended, but that the exact tile selection should be confirmed though a survey of roof tiles in the area, and the final selection should be approved by the Respondent.

  2. Given the narrow scope of the proposed deferred commencement condition, along with the recommendations of Mr Oultram in relation to tile selection, as well as the fact that the final approval of the selected roof tile would remain with the Respondent, I remain satisfied that:

  1. the Applicant’s proposed replacement dwelling is acceptable in the context of the WCA;

  2. all requisite matters requiring consideration in relation to the acceptability of the proposed replacement dwelling on the character of the HCA have been considered, including in relation to the roof tiles for the dwelling and the manner by which this will be finalised; and

  3. the concerns expressed by the Respondent that the imposition of the condition would defer the question of the effect of the Proposed Development on the heritage significance of the HCA is not made out by the evidence.

Is the Applicant’s proposed replacement dwelling appropriate given its location adjacent to the heritage item at 10 Wahroonga Avenue?

  1. As noted above (at [14(2)]), the Parties’ expert planners had agreed that a contention concerning potential overlooking and privacy impacts of the Proposed Development in relation to the heritage items at 36 Braeside Street and 10 Wahroonga Avenue had been resolved to their satisfaction.

  2. The remaining contention concerned the relationship between the Proposed Development and the heritage item “Fairacre” at 10 Wahroonga Avenue, and in particular, considerations as to building separation, side setback, and views to and from the public domain.

  3. Ms Holtham acknowledged that the principal controls in relation to building separation and side setbacks were those within Part 19F.2 of KDCP, which made reference to further setback controls for dwellings within Part 9E.3.

  4. Within the joint report prepared with Mr Oultram, Ms Holtham had stated that while she was of the view that the Proposed Development may not have been compliant with numerical controls in Part 19F.2, she was not able to confirm the assessment of the setbacks and building separation as the Applicant’s plans lacked information that, in her opinion, should have been provided to facilitate that assessment.

  5. She also noted that it was possible that the existing dwelling on the Subject Site was not compliant with existing setback controls. However, she observed that the construction of the existing dwelling may have pre-dated the commencement of those controls, and the building in any case was of a single storey built form.

  6. Mr Oultram had stated within the joint expert report prepared with Ms Holtham, that the Proposed Development complied with the relevant setback controls in KDCP. He added that, in his opinion, the Proposed Development also respected the curtilage of the adjacent heritage item, which in any case only extended to the boundary of the adjacent lot to the north of the Subject Site.

  7. In her oral evidence, Ms Holtham said that she acknowledged that control 3 of Part 19F.2 applied to the Proposed Development and she stated that she neither agreed nor disagreed with measurements made by Mr Oultram in relation to setbacks.

  8. The Respondent in closing said that:

  1. the Applicant had not provided satisfactory detail in relation to the separation of its proposed replacement dwelling and the heritage item on the adjacent property at 10 Wahroonga Avenue;

  2. notwithstanding the satisfaction expressed by the Parties’ expert planners in relation to the Applicant’s provision of adequate mitigation of potential privacy and overlooking impacts in relation to the adjacent heritage items, it remained concerned that inadequate detail had been provided in relation to a proposed rear privacy screen;

  3. Ms Holtham’s evidence that the Applicant’s proposed replacement dwelling would erode the heritage context of the adjacent heritage item and separate it from the broader WCA, was a reason for refusal of the Applicant’s development application.

  1. The Applicant in closing submitted that:

  1. its HIS had provided both an assessment of the impact of its Proposed Development on the HCA, and in relation to its potential impact on the adjacent heritage item, and had concluded that both were acceptable;

  2. the Proposed Development maintained and respected existing setbacks to the adjacent heritage item and the Applicant’s HIS had confirmed that the Proposed Development did not give rise to any amenity impacts on the heritage item or its curtilage;

  3. the Respondent’s criticisms of the Proposed Development, relying on the evidence of Ms Holtham, and specifically concerning its potential impacts on the adjacent heritage item, were general. In contrast, it characterised the evidence of Mr Oultram as detailed, including in relation to the measurement of side setbacks to 10 Wahroonga Avenue, which Ms Holtham did not dispute.

  1. I am satisfied that the Proposed Development is appropriate and the design of the proposed replacement dwelling on the Subject Site is acceptable given its context in relation to the adjoining heritage item, Fairacre, at 10 Wahroonga Avenue, for the reasons provided by the Applicant (above at [62]), supported by the evidence of Mr Oultram, which I prefer and which I adopt.

Conclusion in relation to whether the proposed development is appropriate given its context

  1. I have concluded that the Applicant’s proposed replacement dwelling is appropriate to its context in relation to both the HCA and the adjacent heritage it at 10 Wahroonga Avenue, and there is no reason to refuse consent to the Proposed Development in relation to the provisions of either Part 9D.1 or Part 9F of KDCP.

  2. The provisions of cl 5.10(4) of KLEP require that the consent authority, or the Court on appeal, must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned.

  3. On the basis of my findings above at [51] and [63], I am satisfied that the potential impact of the Proposed Development on the WCA and the adjacent heritage item at 10 Wahroonga Avenue have been considered and I am satisfied that it will not have a detrimental impact on either the WCA or the adjacent heritage item, and that the Proposed Development should be approved.

Conclusions

  1. On the basis of my assessment and conclusions above in this judgment, I am satisfied that the Proposed Development should be approved because:

  1. as agreed by the Parties expert planners (see above at ([14]):

  1. a contention concerning solar access was resolved through the Applicant’s amended plans which provided a compliant level of solar access as confirmed by view-from-the-sun diagrams; and

  2. a contention relating to overlooking and privacy in relation to the heritage item on the adjacent “Fairacre” property at 10 Wahroonga Avenue, was resolved through the imposition of proposed condition 15;

  1. I have concluded that the proposed demolition of the existing building on the Subject Site is acceptable because it is consistent with the provisions of KDCP in relation to the approval of demolition of buildings in a HCA for reasons provided above (at [29] to [32]);

  2. I have considered the potential impact of the Proposed Development on the WCA and on the adjacent heritage item at 10 Wahroonga Avenue as required under the provisions of cl 5.10 of KLEP; and

  1. the Applicant’s proposed replacement dwelling is acceptable in the context of the WCA for the reasons provided above (at [51]); and

  2. the Proposed Development is appropriate and the design of the proposed replacement dwelling on the Subject Site is acceptable given its context in relation to the adjoining heritage item, Fairacre, at 10 Wahroonga Avenue, for the reasons provided above (at [63]).

  1. I am further satisfied that:

  1. the provisions of s 4.15(1)(a) of the EP&A Act have been satisfied, including through the Applicant’s amended statement of environmental effects upon which the Applicant relies, and which, as noted by the Respondent’s expert planner, Mr McInnes, included an adequate assessment against the relevant provisions applying to the amended proposal;

  2. having resolved contentions concerning heritage, and consistent with the opinion of the Respondent’s expert planner Mr McInnes within the supplementary joint report prepared with Mr Minto, approval of the Proposed Development is in the public interest.

  1. The Parties have advised that, as a consequence of the Applicant’s amended plans, the Applicant’s BASIX and NatHERS certificates (see above at [8]) satisfy the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

  2. The Court notes that Ku-ring-gai Council, as the relevant consent authority, has agreed, under cl 55(1) of theEP&A Regulation, to the Applicant further amending its development application DA0081/20, as tendered at the hearing in this appeal.

  3. The Court has previously directed that:

  1. the Respondent, Ku-ring-gai Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the Applicant and the Court after it has been lodged.

  2. the Applicant is to file a copy of the amended development application within 7 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal.

  3. in the event that the Respondent is unable to lodge the amended application on the NSW planning portal as directed in (1) above, the Respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request for the matter to be relisted for further directions.

  1. As previously noted, the Parties have confirmed to the Court that the Applicant’s development application has been amended consistent with the provisions of cl 55(1) of the EP&A Regulation, including in relation to the directions made above at [71].

  2. The Parties have also provided their proposed conditions of consent and where these have differed, those matters have been resolved in this judgment, including:

  1. as discussed above (at [52]), the Applicant’s proposed deferred commencement condition should be imposed in relation to the finalisation of the roof tile selection of the Applicant’s proposed replacement dwelling;

  2. a condition identified a proposed condition 15 (see above (at [14(2)(a)]) should be imposed in relation to the mitigation of potential privacy impacts on adjacent heritage items; and

  3. a condition identified by the Parties in their final draft conditions as proposed condition 27 should be imposed concerning amendments to be made to the Applicant’s landscape plans;

  1. Consequently, the Court is in a position to determine the Applicant’s development application, as amended, through the making of final orders in the appeal.

Orders

  1. The Court orders:

  1. the Applicant is granted leave to rely on amended plans

  2. the appeal is upheld;

  3. Development Application DA0081/1/20 seeking consent for demolition of existing structures and construction of a two-storey dwelling is determined by the grant of consent, subject to the conditions at Annexure ‘A’ of this judgment;

  4. the exhibits are returned, with the exception of Exhibits A and 1;

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (265801, pdf)

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Decision last updated: 03 December 2021

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Statutory Material Cited

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Form Architects (Aust) Pty. Limited v Ku-ring-gai Council [2017] NSWLEC 1107
Helou v Strathfield Municipal Council [2006] NSWLEC 66
Helou v Strathfield Municipal Council [2006] NSWLEC 66