Lynch v North Sydney Council

[2013] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lynch v North Sydney Council [2013] NSWLEC 1079

Hearing dates:

9 May 2013

Decision date:

10 May 2013

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is upheld.

2. The development application for alterations and additions to an existing terrace at 18 Lavender Street, Lavender Bay is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibit A, are returned.

Catchwords:

DEVELOPMENT APPLICATION - alterations and additions to an existing terrace. Impact on heritage significance of item and conservation area.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act
North Sydney Local Environmental Plan 2001

Category:

Principal judgment

Parties:

Michael Lynch (Applicant)

North Sydney Council (Respondent)

Representation:

Ms C Morton of Sparke Hellmore (Applicant)

File Number(s):

10149 of 2013

Judgment

1. This is an appeal under s97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against conditions imposed on the development consent issued by North Sydney Council (council) on 21 January 2013 for alterations and additions to an existing terrace at 18 Lavender Street, Lavender Bay (site).

1. The applicant is seeking deletion of the following conditions:

Retain Arch

A2. The arch on the western side of the southern (front) elevation at Level 01 must be retained.

(Reason: Heritage conservation)

Windows and Doors

A3. The windows and the doors of the development must comply with the following:

(a) All new windows and doors must be timber framed.

(b) The western bi-fold doors at the Level 01 front balcony must incorporate three (3) equally spaced panels.

(c) The eastern bi-fold doors at the Level 01 front balcony must incorporate four (4) equally spaced panels with highlight/upper heritage insert panels to match adjoining terraces.

(Reason: Heritage conservation)

1. The key issues in dispute are whether the removal of Conditions A2 and A3 would adversely impact on the heritage significance of the item and the conservation area.

Site and locality

1. The site is located on the upper, northern side of Lavender Street, between Miller and Walker Streets. It is occupied with a two storey terrace, which forms part of a row of eight individually heritage listed Federation Queen Anne terraces (10-24 Lavender Street). The terraces display a common double fronted gabled slate roof and are arranged in pairs. Each has a recessed entry and verandah bay on the lower level. The upper level of the terraces vary in terms of their balcony and window arrangements.

1. In 1983, council granted consent to a development application (DA1195/83) for the site. The application approved alterations and additions to the terrace and its conversion from a boarding house to a single dwelling. The alterations included the removal of the enclosed upper level bay and balcony and its replacement with a projecting curved balcony. Changes to the fenestration on the front façade were also approved, including the infilling of the upper level "arch".

1. Surrounding development is generally residential and church uses. To the north is a group of single storey attached cottages on Wilona Avenue. To the west and south west are residential flat buildings and Watt Park is to the south.

Proposal

1. The development consent approved works to the terrace including internal changes to the ground and first floor. The replacement of the existing doors in the eastern opening to the Level 01 balcony with four bi-fold doors was also approved (but also incorporated into Condition A3(c)). Changes to the existing window in the western opening of the Level 01 from a rounded arch to a square opening with three bi-fold doors were not approved (under Condition A2), however the widening of the arch through the reduction in the pillar between it and the door opening was approved.

Planning Framework

1. The site is zoned Residential B under North Sydney Local Environmental Plan 2001 (LEP 2001). The development is permissible with consent. The site is individually listed as a heritage item under LEP 2001. The other terraces in the group are also individually listed. The site is within the Lavender Bay Conservation Area and forms part of the Wilona/Lavender Street Group.

1. Part 4 of LEP 2001 provides heritage provisions, which relevantly include the requirement to consider the extent to which the proposed development would affect the heritage significance of a heritage item and the matters to be considered (cl 48). Similar considerations are required for development within a conservation area (cl 49).

1. Section 8.8 of North Sydney Development Control Plan 2002 (DCP) includes provisions for heritage items and conservation areas. Part 5.10 refers to the Lavender Bay Conservation Area and its significance includes:

as a highly intact residential area on the edge of the business district with rare groupings in the North Sydney area of stepped terrace style housing on the slopes of Lavender Bay

Evidence

1. A conciliation conference under s 34AA of the Land and Environment Court Act (LEC Act) was held on site. The parties did not reach agreement and the conciliation conference was terminated and a hearing held forthwith. The parties agreed that the evidence heard onsite and the view could be evidence in the hearing.

1. Ms L Varley, for the council and Mr P O'Carrigan, for the applicant, provided heritage evidence. Ms J Bray, the designer explained the proposal and answered questions.

1. Ms Varley and Mr O'Carrigan agreed that:

1. An arch is a consistent feature of all the terrace row, Nos 10-24 Lavender St at the first floor, except for No22 Lavender St.

2. An open arch is internal to the first floor of all of the terraces in the row, except for No 22 where it has been removed and No 18 where it is external.

3. An internal arch is visible from Lavender St, setback 1.54m from the front façade behind glazing on 6 out of 8 terraces in the group.

4. A Queen Anne Federation fenestration with multi-panes still remains on the First level in a rectilinear frame in four terraces in the group.

5. The infill of the arch with glazing is atypical in the row of terraces and was a modification approved under DA1195/83.

1. The experts held different opinions about the impact of the proposal, which centred on the significance of the arch.

1. In Ms Varley's opinion, the arch is highly significant architectural detailing which contributes to and conserves the heritage significance of No.18 itself and to its context in the Group of terraces and the Conservation Area. The removal of the arch and its replacement with a square opening would not respect the size, proportion or position of the original opening, nor would it reinforce the architectural style of the group of heritage listed terraces.

1. Ms Varley disputes that No.18 is 'isolated'. Her opinion is that it is the existing first floor curved balcony form at No.18, which makes it appear disharmonious with other terraces in the row of terraces.

1. Ms Varley concludes that:

the proposal does not conserve the heritage item, thus degrading the heritage item's significance. The proposal will erode a repeated architectural feature seen on seven of the eight terraces 10-24 Lavender St and will result in a replacement opening that departs from the prevailing pattern of arches in the group of heritage-listed terraces.

Condition A2 is therefore to ensure that the significance of the terrace and the row of terraces is retained. Condition A3 allows for the weather protection of the arch but does not prevent it being reinstated in the future as it was when originally constructed should the owner reconstruct the original facade.

The loss of the arch will not result in significant changes to living standards and is not justified as the heritage provisions prevail over all other provisions.

1. Mr O'Carrigan opinion the arch is no longer "original" as it has been substantially modified. He stated that:

The plaster and staff moulds were stripped; the nib to the party wall was demolished; the arch was made wider; the lower portion was bricked up and rendered, and a pair and a pair of multi paned Stegbar windows were inserted below a fixed arched headed sash. In this sense the window is uncharacteristic within the terrace row and the Wilona/Lavender Street Group.

1. Furthermore, an open arch was originally an internal feature off the front bedroom but the infilled and modified arch now forms the external façade of the terrace and is off the living areas. The other arches in the row of terraces remain as internal elements, which are not visually prominent as they are recessed back 1.54m from the projecting bay and cannot be clearly seen through the multi paned window.

1. In Mr O'Carrigan's opinion, the infilled arch together with the doors and the projecting curved balcony detract from the heritage significance of the item and are uncharacteristic of the other terraces. The proposed amendments to the arch detail are more in keeping with the rectilinear and multi paned nature of the fenestration of the other terraces in the group, particularly its pair at 20 Lavender Street.

1. Mr O'Carrigan concludes that:

the proposal does conserve the heritage item by maintaining its essential heritage significance. The proposal will remove an atypical architectural feature namely an external infilled arch that is not seen on any other terraces in the row. It will result in a rectilinear opening that matches the prevailing pattern of external fenestration in this row of heritage-listed terraces.

Condition A2 does not ensure that the significance of this terrace is reinstated and that the conservation of the row of terraces is retained. The drawings as submitted and approved demonstrate compliance with Condition A3 (a), (b) and (c) hence the condition is redundant. The loss of the arch is minimal to the row given the semi-circular balcony remains, its proposed replacement will not result in a less characteristic feature, and it is justified on conservation and streetscape grounds.

1. The applicant submits that the retention of the arch and the instillation of three bi-fold doors with highlight windows, as proposed in the conditions, would only allow a door clearance of 1.9m and is impractical. Further, he indicated that he would replace the balcony balustrade to match the other balustrades in the group. However, he stated that reinstatement of the "original" balcony or the arch, as an internal element, was not feasible at the present time.

1. Ms Varley acknowledged that there might not be sufficient headroom if the arch was infilled as required by Condition A3(c). She stated that to overcome this, the requirement for a highlight window could be deleted and two or three full height doors installed. She did not object to changes to the balcony balustrade forming part of the conditions of approval.

Findings

1. The requirements in LEP 2001 and the DCP seek to ensure that 'development does not adversely affect the heritage significance of heritage items and conservation areas'. It is therefore necessary to understand the heritage significance of the item and the elements to be changed, to assess the impact of the proposal.

1. The Statement of Significance in the Inventory Sheets for the site and the Wilona Avenue/Lavender Street Group (SHI 2181677 and SHI 2180386) state:

Intact subdivision of the early twentieth century utilising terrace housing and the creation of a private access road, Interesting contrasts between one and two storey design. Pleasantly consistent group in the vicinity notable for it's (sic) variety of building types. Strong village atmosphere which relates well to churches and parks nearby.

1. The Physical Description for No 18 Lavender Street states:

One of a terrace of eight two storey brick houses (nos. 10, 12, 14, 16, 18, 20, 22, 24 Lavender Street) with gabled slate roof, arranged in symmetrical pairs, with projecting gable end over the party wall of each pair and verandahs to both floors of each house. Gable ends are rough cast rendered with a single central string course of moulded stucco. Verandah treatments vary between houses and originality in this regard is difficult to discern. Generally balustrades are of timber with spandrels and ground floor valances of timber shingles. Each house is double fronted, with a recessed entrance bay and verandah bay. Some verandahs are cantilevered, others on posts. The building is set on the ridge above the roadway with ground level garages to each house and the front garden extending over the garage roof. This building is designed in the Federation Queen Anne style.

1. The experts agree that the highly significant elements of the terrace will remain. They also agree that detailing contributes to significance, but disagree on whether the removal of the arch will result in a loss of significant detail and thereby impact on the significance of the item and its contribution to the Group and the Conservation Area.

1. I accept Mr O'Carrigan's evidence. The arch has been modified and is no longer "original" either in its form or detail and, more importantly, in its relationship to the internal and external spaces. Originally it was an internal open arch off a bedroom behind a bay, which faced the street. It is now infilled and forms part of the external façade to the street. It is the only curved arch clearly visible from the street and is different to the detailing of facades of the other terraces in the group which, while varied, predominantly have rectilinear openings.

1. The infilling of the arch and the other external changes to the first floor, particularly the curved balcony, detract from the heritage significance of the item. While the proposal does not seek to reinstate the original elements, it provides a solution, which has less adverse affect on significance, than the current arrangement.

1. Clearly, it would be preferable for the curved balcony to be removed and the arrangement of infilled bays and recessed balconies to be reinstated. However, this is not proposed and is unlikely to occur given the extent of change. The further removal of limited "original" fabric to change the curve of the arch to be rectilinear is relatively minor compared to the changes that have occurred, both internally and externally, to the terrace. Reversal of the changes at a later time would not be rendered less feasible by approval of the proposal and would provide a significant improvement if reinstatement were not to occur.

1. The arch in its modified form in this terrace, is not of such significance to warrant its retention. The proposed changes respond to the prevailing pattern of external fenestration in the row of terraces. The proposal therefore meets the requirements of LEP 2001 and the DCP and does not adversely affect the significance of the item or the conservation area to the extent that conditions A2 or A3 should be imposed. Furthermore, condition A3(c), in its current form, would result in limited headroom and the alternative would result in different detailing to that proposed for the western opening, which is not a desirable option.

1. The applicant has suggested that the removal of the balustrade and its replacement with a balustrade that better matches the other terraces, which was not opposed by Ms Varley but was not pressed by council. This change was not discussed in any detail during the hearing, and while I accept that a condition to this effect could be imposed, I am not persuaded of the benefits given that the uncharacteristic form of the balcony would remain, as would the balustrade of the ground floor terrace. Rather than undertaking further expense to achieve limited benefits, which may also prolong the life of the existing balcony, it would be preferable that the applicant considers more substantial changes to the balcony at a later time when funds permit.

Orders

1. The appeal is upheld.

2. The development application for alterations and additions to an existing terrace at 18 Lavender Street, Lavender Bay is approved subject to the conditions in Annexure A.

3. The exhibits, except Exhibit A, are returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 11 May 2013