Mahalingam v Hornsby Shire Council

[2007] NSWLEC 412

Land and Environment Court

of New South Wales

CITATION:

Mahalingam v Hornsby Shire Council [2007] NSWLEC 412

PARTIES:

APPLICANT
Rajalingam Mahalingam

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10183 of 2007

CORAM:

Bly C

KEY ISSUES:

Development Application :- two-storey dwelling house, streetscape and character, heritage, building height

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan
Draft Hornsby Shire Local Environmental Plan
Hornsby Shire Dwelling House Development Control Plan
Hornsby Shire Heritage Development Control Plan

DATES OF HEARING:

22/06/2007

 
DATE OF JUDGMENT: 

12 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A E Galasso, SC,
instructed by Ms M Albrecht,
SOLICITORS
Maddocks

RESPONDENT
Mr T Pickup, solicitor
SOLICITORS
Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

12 July 2007

10183 of 2007 Rajalingam Mahalingam v Hornsby Shire Council

JUDGMENT

Introduction

1 This appeal relates to Development Application No. 992/2006 which is for the demolition of an existing dwelling and the erection of a two-storey brick and tile dwelling house ("the proposed house") at 5 Sussex Street, Epping. The rectangular shaped site has an area of 873 square metres and has falls to the rear (west) and towards the adjoining property (7 Sussex Street) the north.

2 The street is predominantly developed with modest single storey dwelling houses of the Intra-War period. Exceptions include a two-storey dwelling house opposite and a nearby two-storey dual occupancy development. There are three close by houses that are listed heritage items. Whilst weatherboard cladding and corrugated metal roofing is a common feature of these homes there are a number of brick and tile dwellings in the street.

Planning controls
Hornsby Local Environmental Plan

3 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 ("the LEP"). The objectives of the Residential A zone refer to the provision of housing to meet the needs of the population of the Hornsby area and to development that is within the environmental capacity of a low-density residential environment. These objectives are, pursuant to clause 7(2) of the LEP, required to be taken into account before development consent is granted. The proposed dwelling house complies with the maximum floor space ratio of 0.4:1 in clause 15 of the LEP

4 The three above-mentioned heritage items at 9, 11 and 15 Sussex Street are identified in Schedule D of the LEP as being of local significance. Clause 18(5) of the LEP requires that the consent authority must take into consideration the likely effect of proposed development on the heritage significance of heritage items and their setting and on the heritage significance of a heritage conservation area.

Draft Local Environmental Plan

5 Following the preparation of the East Epping Conservation Evaluation and Review prepared by Tropman and Tropman Architects ("the Tropman review"), the council prepared the Draft HornsbyShire Local Environmental Plan (Amendment No. 76) ("the draft LEP") for the establishment of the East Epping and Essex Street Heritage Conservation Area. The draft LEP includes Sussex Street in the East Epping Conservation Area ("the proposed conservation area"). Finalisation of the draft LEP has been deferred by the Department of Planning, pending a review by the NSW Heritage Office including a review of several draft local environmental plans for heritage conservation areas, and hence it cannot be said to be either imminent or certain. However, having been advertised, the draft LEP is thus a relevant matter for consideration pursuant to s 79C of the Environmental Planning and Assessment Act 1979 ("the Act").

Development Control Plans

6 Also applicable is the Council's Dwelling House Development Control Plan ("the DCP") and its Heritage Development Control Plan ("the Heritage DCP"), which contain relevantly applicable elements dealing with design, streetscape, height and heritage.

Dwelling House Development Control Plan

7 The Design Element in the DCP has the objective of ensuring that building design is consistent with and enhances the character and amenity of the local area. The associated performance criteria require dwelling houses to compliment the streetscape and avoid monotonous or symmetrical design and be consistent with the dominant character of the area. The prescriptive measures require that dwelling house design should be consistent with the dominant design themes within the immediate area. Also in seeking to ensure that new dwelling houses fit in with established streetscapes and character a number of components need to be considered including scale of buildings, height, bulk, roof form, and pitch, spaces between buildings, rhythm, facades, wall and window placement.

8 The Height Element in the DCP has the objective of ensuring that building height is consistent with residential development in the local area and the associated performance criteria requires that dwelling house height should complement existing streetscape and character. The associated prescriptive measures provide that two-storey dwelling houses should generally not exceed 9 m in height from the natural ground level to the ridgeline. Also two-storey dwelling houses at the street frontage are only permitted when they do not adversely impact on streetscape.

9 The Heritage Element in the DCP has the objective of the retention of heritage items and conservation of heritage values in heritage conservation areas. The associated performance criteria require dwelling houses to be sympathetically designed to ensure that the existing heritage value of the streetscape and character of the area is maintained. Particular regard is to be given to the streetscape in heritage conservation areas.

Heritage Development Control Plan

10 The streetscape element in the Heritage DCP has the objective of promoting development that compliments existing character and heritage significance. The associated performance criteria require development to be designed to minimise any affect on heritage significance and character and that new buildings should be designed to complement the existing streetscape. The prescriptive measures require that development should be consistent with the heritage themes of the streetscape taking into account such matters as roof form and pitch, scale, height and proportion of buildings and spaces between buildings. Importantly where a new building is proposed in the street which is predominantly single storey, the proposal should also be single storey. Although where the land is sloping split-level houses will be considered and in some instances roof space can be utilised.

Advertising and Council's decision

11 The application was advertised on two occasions and at least nine letters of objection were received mainly from residents of Sussex Street. The objections from immediate neighbors relate to various matters including amenity impacts such as loss of privacy and overshadowing. It was also of more general concern to the objectors that the proposed house would be too large and thus inappropriate in the street and would be out of character with the nearby heritage items.

12 The following residents gave evidence when the hearing began on-site, explaining their concerns in some detail:

• Mr. P Carroll of 3 Sussex St.
• Mr. C Maher of 81 Oxford St.
• Ms S. Inman of 15 Sussex St.
• Ms M. Bingham of 1 Sussex St.
• Mr. G. Scott of 15A Sussex St.

13 On 3 October 2006 the council refused the development application for reasons including amenity impacts on neighbouring properties and non-compliance with the draft conservation area and the Heritage DCP and failure to respond to the prevailing scale and character of the surrounding area.

14 The application was subsequently amended and submitted to the council for a review pursuant to s 82A of the Act. The amendments to the proposed house include a lowering of the building, a reduction in the area of the first floor and the relocation of the building to the west (ie to the rear).

15 On 21 February 2007 the council again refused the development application, this time for reasons relating to the intensity and scale of the development the height and other design requirements of the DCP and those of the Heritage DCP, taking into account the nearby heritage items and the appearance and character of other residential development in the street.

The Issues

16 The amended statement of issues raises issues involving, streetscape, character, building height, heritage and trees in the context of the requirements of the LEP the DCP and the heritage DCP. No objection was raised to the demolition of the existing dwelling house, notwithstanding that it is said to contribute to the character of the draft conservation area.

Town planning evidence

17 A joint town planning report was prepared by Mr P Vergison the respondent's expert and Mr A Minto the applicant's expert ("the planning experts"). They agree that the key planning issue arising from the proposal is the impact of the two-storey height of the development on the existing streetscape character, but disagree as to whether it's impact is acceptable. Mr Minto believes that the proposed house is appropriate for the site having a height, bulk and scale comparable with adjoining dwelling houses. In acknowledging that it comprises a two-storey building, unlike most others in the street, it has a recessive form, resulting from the first floor being set back 4.5 metres behind the ground floor. Mr Vergison however is of the opinion that notwithstanding the recessive form of the front facade the building still presents as an overtly two-storey design that is inconsistent with development elsewhere in the street. He is of the opinion that a different design that includes attic style rooms within a more steeply pitched roof would be more appropriate and would set a positive precedent for future development in Sussex Street.

18 In relation to the issues of heritage and conservation the planning experts agree that these matters should be left for the heritage experts.

19 In relation to possible amenity impacts on neighbouring properties the planning experts agree that the proposal does not unreasonably impact upon these by way of loss of privacy or unreasonable overshadowing. Having considered these matters in the light of the neighbour objections, particularly that of Mr Carroll and taking into account the shadow diagrams and the proposed arrangement of windows I agree with them that these impacts are within reason.

Heritage evidence

20 A joint heritage report was prepared by Mr D Logan on behalf of the respondent and Mr R. Staas on behalf of the applicant ("the heritage experts"). In their report they deal with the application under the headings of design, streetscape and heritage and in essence disagree on the basic issue, which is the building's two-storey form in the context of the streetscape of Sussex Street and the impact that this has on the setting of the three adjacent heritage items.

21 In relation to the design of the proposed house Mr Logan is concerned that its two-storey character results in it having an appreciably larger bulk than most of the single storey dwellings in the streetscape and as a consequence would stand out and become an overly dominant element on the west side of the street. In addition the side setbacks (1 m and 1.3 m) are contrary to the prevailing development pattern on this side of the street where dwellings typically have a 3-4 m setback on one side (usually accommodating a driveway). The proposed house would thus be inconsistent with the performance criteria in the DCP.

22 Mr Staas disagrees, contending that the DCP should not be interpreted so as to require all new development to mimic existing development particularly considering that there are a variety of architectural styles and character within Sussex Street. Because two-storey buildings exist both in Sussex Street and other areas close-by, a two-storey house on this site would not be inappropriate. Adding to its acceptability is its compliance with the prescriptive measures set out in the DCP including its building line, materials and colours, height (as distinct from number of stories) it's hipped and tiled roof form, its asymmetrical design and reasonable balance of solid to voids. He does not accept that the width of the building is unacceptable and in terms of side setbacks the rhythm of the street varies considerably and is not a readily appreciable streetscape value in Sussex Street.

23 In relation to height Mr Logan points out that there is a consistency in the scale of dwellings on the west side of Sussex Street and that these dwellings step down the hill from south to north. Significantly the topmost eaves and ridge heights of the proposed house step up above those of the neighbour to the south instead of stepping down, thus interrupting the existing pattern. This would be particularly noticeable on this side of the street notwithstanding existing vegetation. Importantly the single storey scale of existing dwellings on the west side of Sussex Street complements the height of the three single storey heritage items and the proposal would compromise this uniformity of scale to the disadvantage of the heritage items and the character of the streetscape.

24 Mr Staas disagreed explaining that the proposed house would not be inappropriate given that there is considerable variety in the street. Moreover with the setback of the upper floor as proposed this results in the appearance of both the walls and the roof being recessive particularly in relation to its neighbours, the proposed house would have virtually no visual impact on the setting or the character of the heritage items.

25 In relation to streetscape the heritage experts agreed that the predominant character of Sussex Street is of single storey cottages and elevated single storey bungalows.

26 Mr Logan considers the existing streetscape to be of heritage and design value particularly as Sussex Street is included within the proposed conservation area. More particularly the streetscape has a scale and historic character that enhances the setting of the three heritage items and the proposed house would detract from the consistency and uniformity of the streetscape due to its bulk, scale, character and failure to respond to the development pattern of the street. These matters indicate a failure to respond to the streetscape element of the heritage DCP that requires consideration of the scale, height and proportion of buildings and spaces between buildings particularly when heritage items and conservation areas are involved. More simply, the building would not fit in.

27 Mr Staas is of the opinion that the streetscape is dominated by vegetation that largely obscures the buildings when viewed obliquely along the street. In this context the immediate setting of the heritage items and their identified significance is largely unaffected by the proposal.

28 In relation to heritage the heritage experts agree that the proposed house would have no direct physical effect on the heritage items or their immediate context.

29 Mr Logan is nevertheless concerned that the proposed house would have the character of a project home and would not integrate well with the setting of the heritage items. Despite acknowledging that the upper floor setbacks somewhat reduce the apparent bulk of the roof, its overtly two-storey form with a double garage in its front elevation together with its upper-level projecting above the first floor roof and its deep relatively flat side elevations are particularly problematical. Also problematical is the presentation of the building in a manner of two separate roof forms and two separate sections of facade presenting themselves to the street with one of these facades above a roof form. These matters all contribute to the lack of sympathy to the adjacent heritage items and the character of the streetscape, which in turn contributes to the setting of these items.

30 Mr Staas recognised that the area is of a low-density residential form and has homogenous characteristics such as building scale form fenestration setbacks and landscaping. He explained that the overall scale of development in the dominant vegetative setting comprises the predominant features of Sussex Street rather than any consistency of architectural expression or style. The proposed development, despite being of two storeys is well set down on the site thus reducing its overall bulk in relation to adjoining development. There are similar acceptable infill buildings located throughout the Epping area. He rejected suggestions that the three heritage items rely to any degree on the wider streetscape for their significance.

The Tropman review

31 Whilst involving fairly large areas within the Hornsby Shire the Tropman review comprises a study that was conducted on a street-by-street basis although it does not contain any specific references to Sussex Street. It recognises that the residential portion of the study area predominantly comprises single storey bungalows, although much of the study area exhibits a character that demonstrates an overlay of growth of development over time. As a whole the study area displays local historic values and contains physical evidence of the Federation and Inter-War periods. The scale and form of streetscapes in certain areas is identified as having notable aesthetic value resulting in their inclusion in the conservation areas. Also the character of these areas is typified by homogenous elements such as building scale and form, fenestration proportion, details, setbacks and landscaped elements these being features that contribute to harmonious streetscapes

32 The Tropman review identifies two precincts within the study area that have been identified as potential heritage conservation areas as they include a high proportion of older housing as evidence of the historical development of the area. They clearly express good-quality streetscape and urban development. One area is north of Epping Road, referred to as the East Epping Heritage Conservation Area, which area includes Sussex Street. This recommended conservation area comprises an area of housing that has remained largely intact and retains many elements of the various housing styles and subdivision patterns that developed mainly after the Second World War. Collectively existing development contributes to a precinct that captures the historical development of housing in the area and provides a historical setting for the remaining heritage items. Importantly the review explains that the unifying character of the conservation area arises from the similarity in allotment sizes, scale of building and openings, setbacks from the street, fencing, detailing and landscaped elements.

Court's conclusions

33 The objective of the Residential A zone that provides for development that is within the environmental capacity of a low-density residential environment is met by the proposed house in the sense that it is not introducing a higher density form of development than the low-density residential development that already exists in this locality. Also there was no suggestion that the usual range of services is not available and the subject land is obviously physically capable of accommodating a dwelling of the kind here proposed. Whilst there are is nothing in the LEP that directly explains how this objective involves the consideration of matters such as streetscape, character and heritage in relation to a development application I can nevertheless understand the submission that the term environmental capacity can be construed in such a way as to incorporate such matters. Some indirect support for this in relation to heritage can be found in clause 18 of the LEP that has the objective of conserving the heritage of the Hornsby area.

34 As indicated above clause 18(5) of the LEP requires that consideration be given to the likely effect of proposed development on heritage items and their setting and on conservation areas. In this regard I am in no doubt that the proposed house would, if constructed and notwithstanding existing vegetation, become a relevant part of the setting of the three nearby heritage items, being in such close proximity to them. As a consequence, these heritage items which contribute to the heritage value of the streetscape must comprise a constraint on the site in the manner of an indicator of its environmental capacity. Similarly given the relationship (under the Act) between a local environmental plan and a development control plan, the provisions of the LEP, the DCP and the Heritage DCP can also be considered to be indicators of environmental capacity. The relevantly applicable provisions of these development control plans have already been described.

35 I heard no evidence to suggest that the basis for the conservation area as contained in the Tropman review is no longer valid hence it attracts weight in the manner of supporting the draft LEP. In turn whilst the draft LEP does not attract the weight it might otherwise attract if it were certain and imminent, it nevertheless attracts weight as a relevant consideration under s 79C of the Act. I also heard no evidence to indicate any inconsistency between the findings of the Tropman review and the relevantly applicable provisions of the DCP and the heritage DCP; hence together these matters attract significant weight.

36 There are a number of important relevant aspects that emerge from the Tropman review, the provisions of the DCP and the heritage DCP especially given the important relationship between the heritage items and the proposed house. Both of the development control plans are concerned that new development should take into account and complement existing streetscape and character and where the streetscape and character of an area has heritage importance as is the case here, possible impacts require even greater consideration. Such consideration relevantly involves an analysis of the scale and form of buildings and spaces between buildings including height, bulk, roof form and setbacks. Whilst the DCP indicates the acceptability of a two-storey house that is less than 9 metres in height (as is proposed), this is subject to the test that such a house does not adversely impact on the streetscape. The heritage DCP is more strict, requiring that where a new building is proposed in a street, which is predominantly single storey and which is clearly the case here, the proposal should also be single storey. Being overtly of two storeys the proposed house does not meet this test.

37 In this regard the applicant's evidence is that the building line of the proposed house is responsive to the neighbour’s building lines and consistent with the applicable controls and at the building line it is single storey in height. Because the setback at the upper level is more than four metres behind the building line this results in the second storey of the proposed house having a recessive presentation. This, together with the effect of the vegetated character of the street that prevents the viewing of more than three or four houses at the one-time, points to the acceptability of the proposal despite it having two storeys.

38 Plainly an important part of the character of Sussex Street is its vegetation and it cannot be denied that the houses in the street cannot all be viewed together. On the west side of Sussex Street, many houses can only be viewed in the context of their immediate neighbours. This does not however mean that the built form relationships between the houses in the street beyond their immediate neighbours is not an important aspect of the streetscape.

39 Whilst the heritage DCP has the effect of strongly discouraging buildings of more than one storey where the street is predominantly single storey, it provides that on sloping sites, split level houses and houses that utilise the roof space can be acceptable. These are means by which a satisfactory streetscape presentation can be achieved whilst facilitating the provision of more floor space than might otherwise be able to be provided with a single level development. Both Mr Vergison and Mr Logan suggest this approach. However Mr Staas believes it would be difficult to achieve a building with two levels having a significantly lower eave line. Moreover if such a building where to have rooms in the roof, the roof form would become excessively large and incompatible in the streetscape.

40 I accept Mr Staas' explanation that such a design would be difficult to achieve but have not been persuaded that it is not possible. Moreover the more fundamental issues of streetscape and character especially the single storey requirement, that indicate the unacceptability of the proposed house must prevail over these difficulties. This must be so, notwithstanding that it is a relatively modest two-storey home that has no unreasonable amenity impacts on its immediate neighbours and has an appropriate palette of colours and materials.

41 Despite any consideration of alternative designs, I agree with Mr Logan that, taking into account the predominantly single storey character of Sussex Street, any redevelopment of this site should have a single storey character. It should, relative to its neighbours to the north and south when viewed from the street, at least appear to step down the slope of the street towards the north. In this context the streetscape elevations show that the ridge heights of the adjoining houses to the south and north are, respectively 96.95 RL and 95.4 RL. The ridge height of the proposed house is 97.36 RL, about 400 millimetres higher than the house to the south. Similarly the eave heights of the adjoining houses are, respectively 94.02 RL and 92.72 RL. The eave line of the proposed house is, (by scale) about 550 millimetres higher than that of the house to the south.

42 In response the applicant submitted that the three-dimensional aspect of the proposed house that results from the stepping back at the first floor level can be taken into account. If this is done and by comparison with its neighbours, the effect of perspective will make the gutter line appear to be lower than what it actually is, emphasising the recessive form of the building.

43 Whilst I understand this approach I have not been persuaded that it is sufficient to overcome the obvious two-storey presentation of the proposed house to Sussex Street. This is especially so when the unusual roof form (for Sussex Street) as here proposed is taken into account. By comparison most houses in the street have a single roof form whereas the proposal has a main roof and a secondary roof above part of the first floor with these two roofs separated by a wall, resulting in a street elevation that would be conspicuously different.

44 These matters together with the proposed house's apparent bulk in comparison with its neighbours leads to the conclusion that it would be out of character and inappropriate in the streetscape. I have reached this conclusion taking into account that there are some different house styles in Sussex Street but this is limited to a few exceptions to the largely consistent character.

45 As for side setbacks it cannot be said that side setbacks are entirely uniform for the whole of Sussex Street but there is nevertheless a pattern that emerges from the existing side setbacks on the west side of the street. Whilst the proposed side setbacks are not responsive to this pattern, this is not, by itself, critical but it nevertheless contributes to the unacceptability of the proposal. Similarly although there are few garages in the street with garage door presentations, there are nevertheless a number of carports and taking this into account and the divided/indented form of the proposed garage doors I do not find this to be problematical

46 Finally, taking into account the applicable floor space ratio and height controls, a larger building than is here proposed could reasonably be anticipated on this site. However these controls need to be interpreted in the light of the environmental capacity of the site taking into account the other controls especially those involving streetscape, character and heritage as well as the fact that the height and bulk of the proposed house is conspicuously greater than that of its neighbours.

47 The orders of the Court are therefore:

1. The appeal is dismissed
2. Development Application No. 992/2006 for the demolition of an existing dwelling and the erection of a two-storey brick and tile dwelling house at 5 Sussex Street, Epping is determined by refusal.
3. Exhibit A is retained

___________________

T A Bly
Commissioner of the Court
Ljr/A.K