McKenzie v Ku-ring-gai Council

[2018] NSWLEC 1683

Land and Environment Court

New South Wales

Medium Neutral Citation:	McKenzie v Ku-ring-gai Council [2018] NSWLEC 1683
Hearing dates:	21 December 2018
Date of orders:	24 December 2018
Decision date:	24 December 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeals are upheld. (2) Modification Application 0087/18 is approved to modify Development Consent 0088/16 for 23 Springdale Road, Killara, to change the roof cladding to Boral terracotta shingles in charcoal grey, subject to the consolidated conditions of consent at Annexure A. (3) Order EPA097/17 for 23 Springdale Road, Killara, issued by Ku-ring-gai Council and dated 5 January 2018, is revoked. (4) The exhibits, other than Exhibits 2, 3, A and B, are returned.
Catchwords:	MODIFICATION APPLICATION AND DEVELOPMENT CONTROL ORDER: change roof cladding material and colour; impact on heritage significance of the heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ku-ring-gai Local Environmental Plan 2015
Cases Cited:	McKenzie v Ku-ring-gai Council [216] NSWLEC 1480 Kendall Street v Byron Shire Council (2004) 138 LGERA 360
Texts Cited:	Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	Lynne McKenzie (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: A Knox, Pikes and Verekers Lawyers J Ede, Wilshire Webb Staunton Beattie Lawyers
File Number(s):	2018/17289; 2018/171926
Publication restriction:	No

Judgment

1. COMMISSIONER: These two matters were heard together. The site is 23 Springdale Road, Killara. The roof of the dwelling has been clad in Boral terracotta shingles in charcoal grey, contrary to Development Consent 0088/16, granted by the Land and Environment Court on 14 October 2016 (McKenzie v Ku-ring-gai Council [2016] NSWLEC 1480) (“the Consent”). The approved roof cladding is “terracotta tiles to match existing” (Exh B, DA.03 Rev B), which was red Marseille patterned terracotta tiles.

The Modification Application 0087/18 (2018/171926)

2. The applicant seeks to modify the Consent, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), to substitute the approved roof cladding with Boral terracotta shingles in charcoal grey.

The appeal against Order EPA 097/17 (2018/17289)

3. The applicant appeals the Council’s Order EPA097/17 dated 5 January 2018 and made pursuant to s 121B of the EPA Act (now s 9.34), titled, “Order No: 15 Pursuant to Section 121B of the Environmental Planning and Assessment Act 1979 Premises: Lot 1 DP 16266 23 Springdale Road Killara” (“the Order”), requiring the applicant to do the following:

1. Completely remove all new grey roof tiles installed on the premises, and;

2. Install roof tiles that match the colour and profile of the original terracotta Marseille roof tiles.

4. The appeal is brought by the applicant pursuant to s 8.18(1) of the EPA Act. On appeal, the Court has the power to revoke, modify or substitute the Order, pursuant to the terms of s 8.18(4) of the EPA Act.

Issues

5. In relation to the modification application, the Council contends that the modern grey shingle style roof will have an unacceptable impact on the surrounding heritage conservation area.

6. In relation to the appeal against the Order, the Council contends that the applicant has failed to comply with the Consent issued and that the dark grey shingle style roof tiles have an unacceptable adverse impact on the surrounding heritage conservation area.

Council’s submissions

7. The Council submits, and provided documentary evidence to demonstrate, that in all negotiations and correspondence with the applicant during the assessment of Development Application 0088/16, which originally included roof cladding consisting of “concrete roof tiles flat design profile and dark charcoal grey colour” (Ex 1, f 122), the Council consistently recommended that the application be amended to include roof cladding that matched the existing terracotta tiles. This recommendation was peer-reviewed and the peer review supported the amendments to the original application sought by the Council. The Council entered into a conciliated agreement with the applicant in the appeal against the deemed refusal of Development Application 0088/16 on the basis of an amended application, which included changing the roof cladding to match the existing terracotta tiles.

The site and its context

8. The site is on the south-eastern side of Springdale Road and contains a two-storey rendered masonry detached dwelling.

Planning framework

9. The site is zoned R2 Low Density Residential pursuant to the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). The objectives of the R2 zone, to which regard must be had, 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.

10. The site is within the Springdale Road Heritage Conservation Area (HCA) (“C21” sch 5 Pt 2 of LEP 2015) and within the vicinity of a number of local heritage items (sch 5, items 365-376, LEP 2015). Clause 5.10(4) of LEP 2015 is in the following terms:

(4) 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).

11. The statement of significance for the HCA is as follows:

“The Springdale Grant Heritage Conservation Area has high historic significance as the 1839 160 acres Jane Bradley’s Springdale grant whose boundaries are evident through the following streets: Karanga Avenue, Locksley Street, Roseberry Road, Stanhope Rd, Pacific Highway. Jane Bradley married James McGillivray in 1830. The HCA has high historic significance as late nineteenth century subdivision of the Springdale Estate evident in the Springdale Estate lots and many fine houses. The subdivision reflects improved transport connections due to the construction of the North Shore Rail line and the opening of Killara Station in 1899. The consolidation of development reflects improved transport connections due to the electrification of the railway in 1927 and the construction of the Sydney Harbour Bridge. The HCA has high aesthetic significance as a cohesive late nineteenth and early twentieth century development and for its high proportion of quality houses.”

12. The provisions of the Ku-ring-gai Development Control Plan (DCP) are a relevant consideration. Part 19 of the DCP addresses heritage items and heritage conservation areas.

13. The objectives of 19C.1 Character and Streetscape include to ensure that the visual impact of new work is minimised through appropriate design, detail, proportion, scale and massing and the controls include, at 1, that alterations and additions within a HCA are to respect the heritage significance and predominant architectural character of the HCA by having similar massing, style, form, proportions and arrangement of parts of the building itself.

14. The objectives of 19C.5 Building Design include to ensure that materials and colours of new work enhances the identified character of the HCA and to ensure that the selection of materials and colours for new work is based on an understanding of the materials, finishes and colours predominant within the HCA. The controls include, at 7, that contemporary materials are permitted for new work where the detailing, proportions, texture and colour range blend with the existing character of the HCA.

15. The controls of 19C.6 Roof Forms and Structures attached to Roofs include, at 6 that new or replacement roof materials are to match, like for like, existing roof materials, pattern and colour and at 8 that where inappropriate retiling has occurred replacement of concrete roof tiling with unglazed terracotta Marseille pattern roof tiling is encouraged.

Heritage expert evidence

16. The applicant relied on the expert evidence of Mr John Oultram and the Council relied on the expert evidence of Ms Leona Goldstein.

17. The experts agreed that the dwelling makes a neutral contribution to the heritage significance of the HCA. According to Mr Oultram, the original inter-war dwelling has been modified, including substantial additions forward of the original dwelling, so that the fabric of the dwelling visible from Springdale Road is contemporary. Ms Goldstein agrees that the dwelling has been altered to the front side and rear almost doubling its original size and it does not signal its inter-war origins.

18. Ms Goldstein noted that the original roofing material is not known, but in her view it was likely to be Marseille patterned terracotta tiles and the experts agreed that the original roof tiles were red terracotta.

19. Ms Goldstein noted that there are dwellings in the vicinity of the site with modern grey tiled roofs, however, these were approved prior to the DCP and would not be acceptable if an application was made today.

20. The experts disagreed on the impact of the Boral terracotta shingles in charcoal grey on the heritage significance of the HCA. According to Mr Oultram, the dwelling reads as a modern house and the roof cladding is akin to the slate roofs commonly seen in the locality. According to Ms Goldstein, the roof cladding appears as a modern element in the streetscape and the grey colour palette of the dwelling combines with the roof cladding to reduce the integrity of the dwelling as the inter-war characteristics have been stripped away.

21. The experts agreed that the Boral terracotta shingles in charcoal grey do not meet control 6 of 19C.6 of the DCP, however, Mr Outram is of the view that the tiles are a high quality replacement of the original cladding and are in keeping with the apparent modernity of the dwelling. In Mr Oultram’s opinion, the existing dwelling does not read as an example of inter-war style architecture and therefore it is appropriate for the roof cladding to be a modern material and colour that is complementary to the character of the HCA. Ms Goldstein is of the view that the Boral terracotta shingles in charcoal grey do not look like slate.

22. Ms Goldstein is concerned that an approval of the Boral terracotta shingles in charcoal grey will set an undesirable precedent, as it will lead to a number of future applications for similar roof cladding within the HCA.

Consideration

23. I accept the agreement of the experts that the existing dwelling makes a neutral contribution to the heritage significance of the HCA. As the existing dwelling has been altered, including substantial additions forward of the original dwelling, it can only be a neutral element within the HCA, because the dwelling is no longer able to be interpreted as an example of inter-war architecture and part of the fabric of the key period of the HCA that contributes to its collective heritage significance. The existing dwelling has a contemporary character; however the siting, massing and articulation of the dwelling make it unobtrusive and sympathetic to the aesthetic significance of surrounding high quality residential development.

24. The Consent granted permitted the replacement of the roof cladding. Therefore the issue is confined to the appropriateness of the replacement roof cladding material and its colour. This is not a matter of protecting or minimising the loss of original fabric.

25. I accept the agreement of the experts that the proposal does not achieve the control at 6 of 19C.6 of the DCP to replace roof materials with matching, like-for-like existing roof materials. This control is appropriately applied to dwellings which retain characteristics consistent with the key periods of development of the HCA. In this circumstance, however, the dwelling has been substantially extended and altered so that it no longer reads as an example of inter-war architecture, and so there is nothing to be gained by replacing the roof cladding with contemporary red terracotta tiles that are similar to the original roof cladding of a former version of the dwelling.

26. I am satisfied that the Boral terracotta shingles in charcoal grey achieve the relevant objectives of the DCP for heritage conservation areas, because the roof cladding is compatible with and does not detract from the established character of the HCA and it is consistent with and complementary to the contemporary character of the approved dwelling. The approved dwelling and its roof cladding successfully provides an appropriately unobtrusive neutral setting to the nearby heritage items, because the existing dwelling sits comfortably within the context of the nearby high architectural quality houses and does not interrupt the character established by the cohesive late nineteenth and early twentieth century development in its vicinity.

27. Replacing the existing roof cladding with contemporary red terracotta tiles would not change or improve the relationship of the existing dwelling to its context. It is not necessary for a neutral element in the HCA to mimic the historic materials of the nearby dwellings identified as heritage items or contributory to the collective heritage significance of the HCA, in order to be appropriately decorous within a heritage setting. I am satisfied that the detailing, proportions, texture and colours of the dwelling, including the Boral terracotta shingles in charcoal grey, blends with the existing character of the HCA.

28. I accept Ms Goldstein’s view that the approval of the roof cladding may set a precedent for the use of the same or a similar roof cladding of other dwellings within the HCA that are a neutral element within the HCA. However, approval of the roof cladding on this site will not set a planning precedent for properties identified as heritage items or assessed as being contributory to the heritage significance of the HCA, because these properties are subject to and protected by the heritage conservation clause in LEP 2015 and the heritage conservation provisions in the DCP. The approved roofing material of a dwelling that makes a neutral contribution to the heritage significance of the HCA will therefore have no bearing on the individual merits of these future applications.

Conclusion

29. I am satisfied that it is appropriate to grant approval to the Modification Application to substitute the approved roof cladding with Boral terracotta shingles in charcoal grey.

30. The consent for the existing roof cladding dates from the making of the orders and is not retrospective (Kendall Street v Byron Shire Council (2004) 138 LGERA 360 [25]).

31. It is therefore appropriate to revoke the Order.

Orders

32. The orders of the Court are:

1. The appeals are upheld.

2. Modification Application 0087/18 is approved to modify Development Consent 0088/16 for 23 Springdale Road, Killara, to change the roof cladding to Boral terracotta shingles in charcoal grey, subject to the consolidated conditions of consent at Annexure A.

3. Order EPA097/17 for 23 Springdale Road, Killara, issued by Ku-ring-gai Council and dated 5 January 2018, is revoked.

4. The exhibits, other than Exhibits 2, 3, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (192 KB, pdf)

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Decision last updated: 24 December 2018