Mok v Ku-ring-gai Council - [2008] NSWLEC 5

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Mok v Ku-ring-gai Council [2008] NSWLEC 5

PARTIES:
APPLICANT
Edwin Mok
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10749 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Application :- Demolition of existing house, refusal of new house and indoor swimming pool, existing potential heritage item, contributory item in streetscape, owners consent to works on adjoining land, easement for drainage on adjoining land, non-compliance of new house with statutory controls, new house non-contributory to character of locality.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance 1970
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No. 55 - Remediation of Land
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

DATES OF HEARING: 27/11/2007 and 30/11/2007

DATE OF JUDGMENT:
10 January 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister
instructed by Ms P. Murray
of Minter Ellison
RESPONDENT
Mr C. Leggat, SC
instructed by Mr T. March
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

10 January 2008

10749 of 2007 Edwin Mok v Ku-ring-gai Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No.10749 of 2007 between Edwin Mok and Ku-ring-gai Council in regard to the deemed refusal of DA1423/06 for the demolition of an existing older house and swim pool and the erection of a new house and new indoor swim pool at No. 16 Stanhope Rd, Killara.

2 The property already has development consent for re-subdivision in conjunction with No. 16A Stanhope Rd, a battleaxe lot at the rear of the subject site. The re-subdivision would enlarge the front lot that is the subject of this hearing. Nos.16 and 16A were one property at the time of erection of the existing older house on No. 16, which used to have large gardens and a tennis court in the back yard. The re-subdivision would cut a boundary through the existing newer house on No. 16A meaning that house also would be demolished in due course and another house erected.

3 Nos.16 and 16A are both owned by the applicant at the present time. No. 16 has its own existing vehicle entry via a semi-circular driveway and two footpath crossings. The proposal involves closing this vehicle access, and replacing it by shared use of the private access handle driveway of No. 16A.

4 I said to the parties that the application did not appear to stipulate any proposal for a Right of Way for No. 16 to do this. Also there are works such as new gates and full length new drive pavement within No. 16A, masonry fencing and landscaping in No. 16A’s access handle and a stormwater drainage easement that had no separate owner’s consent or nomination on the formal application. The Development Application and the appeal are in regard to No. 16 only.

5 The re-subdivision development consent contained nothing that would provide for this void.

6 Late in the proceedings the applicant sought to overcome this difficulty by producing in Exhibit X an owner’s consent for No. 16A by Edwin W S Mok and Rina Y M Hui consenting to the proposed works in No. 16A.

The proposal

7 After demolition of the existing house, the new house is proposed as 2- and 3-storey with external brickwalls having faux stone stringcourses, aluminium framed windows. There are timber louvre shutters to each window with tilting blades only to narrow windows and both tilting blades and sliding panels to larger windows, and a slate pitched roof over the front section. The rear section of the house has a flat roof. Both front and rear sections appear as 2-storey, and due to the slope of the land the rear section steps down one storey from the front.

8 The upper floor at the front has 3 bedrooms and a study and a north terrace. The ground floor at the front has the entry porch and foyer, library, guest bedroom and Chinese Room. Below this ground floor is a stairway to the lower level and plant rooms and large subfloor rooms, the latter partly used for stormwater detention tanks. The respondent puts that these comprise a 3rd storey.

9 The rear section of the house has, at the same level as the front ground floor, a music/media room, formal living/dining room, kitchen and informal living room plus a large full house-width north terrace under the main roof. At the lower level are the 2-car garage, gym, servant’s flatette, laundry and an indoor swim pool with full height glass windows across the full width of the north elevation. Beyond the pool room is a paved north terrace with steps down to a lawn area in the rest of the back yard. Landscaping trees and shrubs are proposed around the perimeter, and the retention of a tall existing Monterey Pine (or similar) tree towards the rear of the re-subdivided lot.

10 The front yard is to be raised about 1m to be level with the ground floor entry. The entry path from the central pedestrian gate crosses the front setback between ornamental ponds. The new front fence is a palisade on a brick/concrete pier & beam base, and a band of vegetation goes along the front fence and down the side boundaries to enclose the front yard. An existing canary palm is to be retained. Retaining walls for the front yard and the rear yard are set in 1m from the east boundary and 3m from the west boundary and zero setback to rear boundary. Masonry walls also appear to be located along the actual west boundary.

11 The proposed integrated garage is located about halfway down the east side of the house and is accessed via the battleaxe handle to No. 16A Stanhope Road. The works on No. 16A’s property have been described above.

12 The proposed dwelling has a floor space ratio of 0.49:1 and a built-upon area of 39.32% (702.73m2) compared to the site area. The dwelling will have a minimum setback of 19.8 metres from the front boundary and an average front setback of 21.8m. The allotment is slightly splayed to the street boundary. The proposed house is set square to the side boundary.

13 On the side boundaries the proposed dwelling will be set back 0.925 metres from the access handle at No. 16A Stanhope Road, 3 metres from the access handle at No. 14A Stanhope Road and 29 metres from the rear boundary.

14 A SEPP 1 objection to Clause 46 of the KPSO has been submitted with the development application to address the proposed non-compliance with the 8 metre maximum Height of Building development standard. The proposed development will result in a new building height of 9.5 metres, a breach of 1.5m.

The site

15 The site is zoned Residential 2(c2) under the Ku-ring-gai Planning Scheme Ordinance 1970 (KPSO) as amended 30 March 2007.

16 The site is a rectangular shaped lot and has an area of I785m2. The site has a frontage of 25.4m to Stanhope Road, after re-subdivision the new lot will have a rear boundary of 25m, an eastern side boundary of 73.785m and a western side boundary of 69m.

17 The property has a fall of 2 metres from the front to the rear of the property.

18 A Phoenix canariensis (Canary Island Date Palm), approximately 16 metres in height, is located at the front of the property, adjacent to the western side boundary.

19 The subject site currently occupied by a two storey, face brick and tile roof dwelling, with an attached carport along the eastern side boundary and front fence. The existing residence has a minimum setback of 24.5 metres from Stanhope Road and contrary to the proposal is set parallel to the front boundary, and at a splay to the side boundaries.

The Locality

20 Stanhope Road has an avenue of large trees arching over the roadway adding to its attractive appearance. The street runs east from the highway to a bridge across the railway cutting, and continues into East Killara. The relevant locality is defined as the section between the highway and the railway. It contains a mixture of 1- and 2-storey dwellings with a number of heritage-listed properties.

21 Council's Visual Character Study found the site and surrounds are within the Inter-War period 1920-1945 categories.

22 Amongst the heritage listed items is the adjacent property to the east across the access handle of No. 16A at No. 18 Stanhope Road. No. 18 Stanhope Road, is a double storey brick and tile dwelling, set back approximately 24.3 metres from Stanhope Road and 8 metres from the south-eastern side boundary. It is classified as a Federation Arts & Crafts design. It and Nos. 14 and 16 are the only 2 houses set parallel to the front boundary. The other houses are set square to the side boundaries and at a splay to the street.

23 The other heritage items are Nos.2, 4, 6 on the north side of the street and Nos. 3, 5, 7 and 23 on the south side. They contain some pre-1920 houses of the Edwardian and the Federation Arts and Crafts Styles. The adjacent house to the west, No. 14 Stanhope Road, contains a single storey residence, set back approximately 14.5 metres from the street and 6 metres from the common boundary with the subject site. Within the 6m is a 4.5m wide driveway to No. 14A, another battleaxe lot behind No.14. The access drive to No. 14A runs along the west boundary of the subject site.

Statutes and Controls

24 Surrounding sites are zoned Residential 2(c2) as is the subject property, No.18 is zoned Residential 2(b) under the Ku-ring-gai Planning Scheme Ordinance 1970 (KPSO).

25 The following statutory controls are applicable to the proposed development:

State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55) - Clause 7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) - Clauses 3 & 5
KPSO - Clauses 25, 46 & 60C

26 The following plans and codes are applicable to the proposed development:

Development Control Plan No. 38 -The Ku-ring-gai Residential Design Manual - Chapters 1-5 (inclusive)
Development Control Plan No. 40 - Construction and Demolition Waste Management Chapters 1-3 (inclusive)
Development Control Plan No. 43 - Car Parking Code - s3.1, 4.1, 4.2 & relevant appendix Development Control Plan No. 47 - Water Management - Chapters 1,2,3,4, 5,6,8 and relevant appendices
Development Control Plan No. 56 – Notification-Chapt 1-5 (inclusive).

27 The proposal seeks to demolish a structure that has heritage and streetscape value and to replace it with a building that will have adverse impacts:

Review of Potential Heritage Items in the Ku-ring-gai Local Government Area and a

alter the

proposal will

loss

4.1.1 of

development

western

elevations. Where walls exceed 4 metres in height unrelieved walls are not to be in excess

28 The respondents evidence came from:

Mrs A Carroll, objector of No.36 Karranga Ave Killara, the President of Friends of Ku-ring-gai Environment Inc. (FOKE) and authorised to testify on its behalf and a petition taken by FOKE with 345 signatories.
Mrs K.J Cowley objector of No.1 Kenilworth Rd, Lindfield, vice-President of FOKE, a member of Friends of Eryldene, Friends of Tulkiyan, Friends of Lindfield Inc, Ku-ring-gai Bat Colony Association and the National Trust of NSW.
Mr S Layman consultant architect and town planner
Mr S Robertson consultant heritage expert.

29 Several other objectors spoke at the on-site part of the Hearing. The parties took me on a view of the site, the existing house, No. 14A, and Stanhope Road between the highway and the railway, seeing the listed heritage items in the street.

30 The applicants evidence came from:

Mr E Sarich consultant town planner and surveyor
Mr G Brooks consultant heritage expert.
Mr A Cortese design architect of the proposal.
Mr E W Mok applicant.

31 The objectors concerns are in summary:

FOKE is an advocate group for the maintenance of Ku-ring-gai’s heritage, traditional character and amenity both built and natural.
It supports the council position that even though several earlier heritage studies did not list No. 16 as a heritage item, more recent studies nominate it as a potential item.
The previous studies did recognise it as a contributory item in Stanhope St that is recognised as an important streetscape.
The locality in and around Stanhope Rd is Urban Conservation Area No. 10 (UC10) under the National Trust and is listed by the Australian Council of National Trusts as one of a number of “endangered places”.
The existing house is said, by some experts, to be the work of Budden & Greenwell, a known firm of architects of the 1920-30’s and built for Mr P. C. Basche, a known identity in Killara of the period and a prominent thoroughbred horse-breeder and dairy farmer of the Hunter Valley.
The Council has recently resolved to include it in the next amendment to the KPSO as a heritage item.
The proposed replacement house does not comply with Council’s statutes and controls.
The design and materials of the proposed replacement house are inappropriate for the Stanhope streetscape and UC10.

32 The details of the FOKE objections overlap with the experts’ evidence so I will deal with the details in their evidence.

33 Mr I Glendinning consultant town planner gave evidence on behalf of the owners of No. 14A Stanhope Rd, Mr & Mrs Carroll who were away at the time of the Hearing. He was concerned about the impact of the masonry fence proposed along the western boundary and the impact of its excavation and footings on existing trees and vegetation in the leafy arcade down No. 14A’s access driveway. He was told the masonry fence is deleted and a timber fence installed that would not affect the vegetation.

34 He was also concerned about the height of the proposal and its extension towards the rear that might appear high and bulky to the Carroll’s. I was taken down No. 14A’s drive and was told by the applicant that if there was to be any glimpse of the proposal, it would be through boundary tree vegetation, and would appear similar to the existing house in height. Also the only place from which it would be seen from the Carroll’s is the driveway and the car-courtyard and the formal front of their house. Privacy was not an issue as the distance of separation of the two houses was said to be about 35m, and a that distance the bulk could have little impact. Mr Glendinning said impact would be minimal and acceptable.

35 The other matter of concern was stormwater drainage, as there appeared to be no application to drain to a stormwater sump on No. 14A’s land. Mr Glendinning said the application plans showed a stormwater sump existing on No. 16A that is actually on No. 14A. The applicant said it would accept a condition requiring an easement to be created prior to release of Construction Certificate.

36 The applicant tendered letters of support for the proposal from nearby and adjoining neighbours:

Ms T McBain, resident/supporter No.5 Stanhope Rd

Dr C Paleologos, resident/supporter No. 9 Stanhope Rd.

Mr and Mrs S D Esler and J D Esler resident/supporters No. 17 Stanhope Rd.

Dr and Mrs A Wet stein resident/supporters No. 14 Stanhope Rd, Killara (western neighbours across the access to No. 14A).

Mr & Mrs P Done resident/supporters No. 18 Stanhope Rd, Killara (eastern neighbours).

T Y Chuan resident/supporter No. 19A Stanhope Rd, Killara (opposite the site).

Another owner in Stanhope Road supported the proposal in writing but asked for name and address to be withheld.

Mr D Hornery, owner/supporter No. 12 Stanhope Rd, Killara.

Dr D & Mrs M Bachmayer, No. 2 Culworth Ave, Killara, eastern neighbours to the site across No. 16A.

37 Other letters of support came from:

Mr R Medway and Ms I. Silva No. 42 Telegraph Rd, Pymble.
Mr and Mrs J M and S M Wolfe No. 17 Bromley Ave, Pymble.
Mrs S T Lowe No. 39 Werona Ave, Killara.
Dr & Mrs P W King, No. 2 Kiparra Street, Pymble.
A L and Y Y Yu No. 100 Livingstone Ave, Pymble.
A & L Law No. 10 Valley Rd, Lindfield.
Mr P Janssen No. 48 Treats Rd, Lindfield.
Mr & Mrs J and M Gibson No. 55 McIntyre St, Gordon
Mrs S Ng resident/supporter No. 1 Lorne Ave, Killara

38 A summary of the supporters opinions is:

The existing house is not listed as a heritage item and its status in regard its heritage significance and its designers is disputed because of the number of experts who have found it of insufficient value to become an item.

There have been unsympathetic external and substantial internal alterations.
Compared to the fully listed heritage items in Stanhope Rd, the existing house is of much poorer quality even to the ordinary person.
The proposed replacement house has similar setbacks and height to the existing house, and should be approved.

39 There was evidence of an encounter between Mr Mock and Mrs Crowley, however that is not relevant to the decision I have to make of fact and merit based on the applicable statutes and controls in this appeal.

40 The heritage experts Mr Robertson and Mr Brooks gave concurrent evidence. They agreed the National Trust rating has no statutory basis, but it may be seen as a step in research that may lead to heritage listing. Mr Robertson had been engaged by the Trust to report on the history of Inter-war housing in Sydney, Newcastle and Orange. It was completed in 1996. After review by a committee of the Trust, the Board listed its heritage items and Urban Conservation areas and Stanhope is in UC10. These listings do not give legal status in the KPSO. However some of the Trust’s items have been made heritage items by the Council under the KPSO.

41 Mr Brooks said that the Trust’s conservation areas covered whole swathes of Killara, and Stanhope is only one street. This application has to be seen in that perspective. He agreed with Mr Robertson that non-contributory items to a conservation streetscape can be demolished. He said that contributory items need assessment, including the quality of the replacement building before any demolition.

42 Therein lies the difference between the two. Mr Robertson said that contributory items should not be demolished as their loss demeans the immediate streetscape close to the site, and with multiple demolitions of contributory items over time, a whole conservation area loses significance.

43 He agreed that the 1996 study did not give a list of contributory and non-contributory buildings. He said that early surveys concentrated on “high Inter-war style”, subsequent studies had looked in greater detail at individual buildings and he had a brief now to extend surveys to all Inter-war styles.

44 The existing house on No. 16 is known as “St Helen’s”. Mr Robertson says it fulfils the criteria for heritage significance because:

He is 90% sure it is a Budden & Greenwell, architects
It is visually prominent in the streetscape and is a fine example of Inter-war Georgian Revival style with expansive gardens and semi-circular driveway.
It is a rare example of the style in dark black/brown brickwork.
The alterations to No. 16 are not readily visible from the street and retain a high degree of aesthetic significance.
It was built for and lived in by a person of standing in the community
It is an example of styles popular with academically trained architects of the Inter-war period.
This part of Stanhope Rd (originally Springdale Rd) and the quality of residences and their intactness reflect its early importance in the locality.

45 He says the streetscape is important because:

It has integrity of substantial trees forming an avenue complemented by well-landscaped gardens in the houses.
It is a gateway street to early Killara and now east Killara due to the link from the highway to the bridge over the railway
It has uniformity of housing styles mostly from the inter-war period including colour, form and architectural detail that give a harmonious appearance.
The predominance of 1920-30’s housing styles illustrates the important influence of American and British ideals and styles on Australia in the inter-war period.

46 Mr Brooks says:

No. 16 has been looked at by a number of heritage experts who have concluded it is not worthy of listing.
The only evidence that No. 16 might be a Budden & Greenwell (B & G) is in dispute. The only records are 24/11/1922 NSW Contract Reporter saying council consented to a residence for Basche, and 8/12/1922-saying Jamieson the builder had a contract to build a cottage in Springdale Rd (now Stanhope Rd). No address given so no direct link to Basche and B & G.
In 1934 there is positive evidence that B & G designed a new house for Basche in Edgecliff, and that he moved from No. 16 to Edgecliff. That lends to the question of whether Basche and B & G knew each other 12 years earlier when No. 16 was built, and that the architect did both houses. But it is speculation.
Mr Brooks looked at four (4) known B & G houses of same period and concludes No. 16 is so different it is not likely to be by B & G. If it is one of their designs, it is not one of their best. He supported the conclusions of other heritage experts that said No. 16 is not worthy of being a heritage item.
The council’s decision for a draft LEP amendment to list No. 16 as a heritage item was based on the Council officer report that No. 16 is by B & G. The council officer stated the speculation as fact and that is not correct.

47 Mr Robertson had more information on Greenwell who he says would have been the designer if No. 16 is by B & G. In about 1911 Greenwell obtained his degree from University of Pennsylvania and returned to join the firm of Kent & Budden. He was influenced by United States Plantation and Georgian Revival styles over there. No. 16 has elements of both, and is a most unusual design due to that.

48 Mr Brooks noted that No. 16 has been passed over many times as not having sufficient heritage value for listing as an item under the KPSO:

1987 Ku-ring-gai heritage survey recognised Stanhope Rd as one of a number of important streetscapes, and identified 18 houses as potential items including 9 in this section of the road and No16 was not one of them. 17 of those have been listed under the KPSO.

Godden Mackay Logan 2000 heritage study enabled council to look at 464 properties in Ku-ring-gai, and No. 16 was looked at and not recommended for listing.

In 2006 Perumal Murphy Alessi identified No. 16 in a field of 154 properties as a “potential heritage item”. Council did a non-statutory public exhibition of the “potential” buildings.

During this period Mr Mok bought No. 16, and asked Godden Mackay Logan to review its heritage potential in detail. They said it did not reach the threshold for listing.

When the DA for the house was lodged, the Ku-ring-gai Heritage Advisory Committee considered the house and said in summary, the house is not an item, the replacement house is acceptable including minimal impact on No.18 the adjacent heritage item, and recommended No. 16 be demolished as there is insufficient reason to refuse it.

In 2007 council authorised a peer review of No. 16 due to the controversy surrounding it. A consultant firm INHERITage reported No. 16 had insufficient heritage value to be individually listed as a heritage item, examined other houses of the period by Budden & Greenwell and concluded it is unlikely to be by them, and agreed with Godden Mackay Logan it has contributory status only in the Stanhope Rd streetscape.

Mr Kirk a council officer reported on the INHERITage review and added social significance research that although it was one Sydney home of P C Basche, he was a significant figure in the horse breeding industry with extensive interests in Hunter Valley studs and that is where his main contribution to the community was made. The threshold for listing on social significance is for buildings esteemed by the community for cultural values, and if lost would cause a sense of loss of identity in the community. Mr Kirk reported the house did not justify retention on these bases, and recommended it be deleted from the “potential heritage items” list.

The NSW Department of Planning had refused a community request forwarded by Council to have an Interim Conservation Order imposed on No. 16.

49 Mr Brooks had reached similar conclusions to the above peers and advised Bligh Voller Nield on principles of design of the proposed new house so that it would fit into the streetscape and have minimal impact on No.18.

50 This led to the street setback being similar to No.18, and landscaping at the front boundary to screen the house similar to others in the streetscape. Also, the materials being brickwork of similar black/brown to the existing house with a slate roof like others in the street. And, the front 2-storey section of the house has been deliberately contained in size as seen from the street so that it does not have the bulk to dominate the heritage item adjacent. It does this by being only one room deep, and then stepping down to the ground floor level, with the rear section having a flat roof.

51 In regard to the existing semi-circular drive, Mr Brooks said the council DCP only sought to retain full circular drives as seen in No.18, the heritage item. The benefit of deleting the existing access is the increased landscaped frontage to the streetscape and the discrete placing of the new house behind the landscape screen with no obvious garage in sight, thus complimenting other gardens in the street and perhaps emphasising No. 18.

52 Mr Cortese responded to criticism that his design would be an ordinary, plain, ugly, fortress, never be contributory, without eaves or decorative treatments to soften the appearance, be stark and unsympathetic to the softer streetscape character of Stanhope Rd, and would be large and imposing compared to surrounding homes.

53 He said authentic architecture does not resort to mimicry and replication and should reflect its own period, not some previous time, whilst still taking into account its context and responding appropriately.

54 The alignment of the new house to the side boundaries, not the front boundary reflects most of the other houses whilst the setback generally is the same as the existing No. 16 and the heritage item No.18. This is an appropriate transition between Nos 18 and 14, the latter being much closer to the front boundary.

55 The front section of the new house with its pitched, slate roof approximates the massing and location and height of the existing No. 16, so that the existing relationship of one house to the other is not disturbed. The rear section of the new house, being lower, will hardly be seen from the street. The form and scale of the new will therefore relate to the existing houses in the street.

56 Although there is criticism of side boundary setbacks not complying with the applicable DCP, the non-compliance on the west side occurs only at the upper floor and is minimal at 0.75m. The east side setback is substantially non-compliant at 0.925m to the No. 16A drive boundary, but the driveway is 4.6m wide and No.18 is 8m beyond the driveway.

57 The objective of the side setbacks is to get space between buildings and to plant trees for amenity and streetscape reasons and to avoid overshadowing. The design allows that even with the non-compliances. The spacing will be similar to the historical existing streetscape along this section of Stanhope, including some of the heritage items that have side driveways or battleaxe drives to rear lots that make the existing buildings non-compliant with the current DCP also. The proposal reflects the typical spacing between buildings and the vegetation. The nearest example is Nos 14 and 14A.

58 The width of the new house is criticised as making it too large, but the existing house viewed in elevation square to the street is about the same width due to its being at a splay to the front boundary. Other houses in the street are similar width.

59 The façade is criticised as being unarticulated and fortress-like. Mr Cortese said the design is gracious and elegant. It is restrained and unostentatious. The entry porch and windows are deeply recessed with timber louvre screens as a current interpretation of shutters seen on older buildings. The vertical proportions of the shutters are not unlike older shutters although larger in size. As with old type shutters, the filigree of the louvres will soften the façade. The brick colour is similar to existing plus contrasting string courses. To the passer-by seen through the front vegetation the house will be discrete.

60 The front palisade fence is more appropriate to the 1920-30’s period than the brush fence in front of No.18 the heritage item. But again the proposed palisade is a current interpretation not mimicry.

61 Whilst eaves are a traditional form of roof edge, the design without eaves will compliment the simplicity of the façade and house form. It will be built with a precast faux stone course on top of the wall with its coping pitched to match the slate roof, so there is a restrained play of form, material and detail at the transition from wall to roof.

62 Mr Layman was critical of the street façade noting it did not comply with the Building Height Plane (BHP) due to the side setback non-compliance and the failure to increase the setback at the upstairs level. On the east side the BHP is penetrated by 3.4m, and on the west by 1.7m. Also the upper floor is supposed to be only 40% of the ground floor area. He perceived the house as two pavilions, so the upper floor of the front section should be 40% of the ground floor below it, and the same for the rear section. Taking that into account, plus the height limit standard and the BHP penetrations, the front façade is top heavy.

63 He said this oversized bulk is reflected in the Floor Space Ratio (FSR) applicable under the DCP. There is a range of FSR’s calculated by the experts. I accept the calculation that includes the Pool Room and decks under the main roofs with walls 3 sides, with the allowed credit for a certain amount of garage space and for decks above ground level. The figure for that is 0.428:1 when the DCP says 0.3:1 maximum for an allotment more than 1700 sq m area.

64 The particular design on this house includes the pool room and decks under the main roof that creates the envelope of visible bulk. FSR is a control on bulk. Mr Sarich argued the FSR is 0.325:1 under the KPSO that excludes pool room and decks but I cannot accept that. I do accept however that the applicable FSR is contained in the DCP not the KPSO. Mr Sarich said that even if it exceeded the FSR, the design achieved the objectives of the LEP and DCP for the visual bulk and spacing between buildings within the streetscape.

65 Mr Layman said that the narrow planting strip in the 0.925m side setback to No. 16A’s driveway would not allow tree planting to soften the proposed house, especially when 3 existing trees along the drive are to be removed.

66 The landscape plan showed only a hedge in the 0.925m setback. Mr Sarich said the landscape plan showed several trees in the east side of the driveway of No. 16A, and across the front boundary of No. 16 that would give the vegetative softening of the space between the new house and No. 18 in a similar way to other places in the street.

67 I note the architectural plans show driveway pavement to the east boundary of No. 16A where the landscape plans show vegetation. A 500 mm wider planter bed along the boundary is required.

68 The 3-storey appearance was said to increase the bulk. Mr Sarich said the appearance is 2-storey at any one point. The 3rd level is subfloor and stairs partly underground below the front section of the house. There are no windows to the subfloor, it looks at most as foundation walls. From the street it is 2-storeys. The roof height is 200mm lower than the existing house that does not comply with the 8m limit. Neither does No.18 or several other houses in Stanhope comply with the 8m limit.

69 I agree with Mr Sarich that the objectives of DCP 38 cl 4.2.2 are complied with and the development of the building as a 2-storey appearance is unaffected. The envelope is configured to fit in with the adjacent No. 18.

70 The eave line of No. 18 is about the same level as the wall parapet of the proposal, so the two houses relate in height. The only place one can see the stepped 3 levels of the house is from Nos 14A, 16A and No. 18’s side yard, it will still be seen as 2-storey at any one point.

71 On wall articulation, Mr Layman said the DCP asks for walls that are 4m high or above to be no longer than 8m without articulation, and window and door openings and features cannot be called articulation. The proposal has a front façade 21 m wide and about 6.5m high above the ground floor level. If the filling of the front yard is ignored the wall is about 7.5 m high.

72 Mr Sarich said the windows and door openings are not conventional, they are deeply recessed. Part of the simplicity of the architecture is the sculpted look of the floor to ceiling recesses and timber louvre panels. He referred to No.12 Stanhope that he said is about 15m wide and about 8 m high to the eaves and largely unarticulated. The respondent produced a picture of No.12 showing it does have a large central section of the front façade and roof stepped forward slightly. It is not very obvious due to the trees in the front yard.

73 On selected materials for the exterior Mr Layman said the black/brown brick colour, similar to the existing house is acceptable. Also the slate roof is acceptable provided it is slate because the colour sample is a ceramic tile. He noted the drawings showed ridge and hip tiles whereas Mr Cortese said on the view he would do hidden ridge and hip flashings with the slate mitred neatly at the roof plane changes. Mr Layman said the faux stone string courses and parapet coping are not seen in the street except for a much older house on the corner of the highway and Stanhope.

74 Mr Layman was not particulay concerned about the black aluminium window frames as they would be largely hidden by the louvre screens. He did not like the louvre screens as they would not have sympathy with architectural features seen on other houses in the street as sought by the DCP. The proportions of the window openings were different to others in the street also, he said, being 3.6-4.0m wide with a horizontal emphasis when others are square or vertical emphasis. The “no eave” treatment is also unsympathetic he said.

75 In regard to the time of the “potential heritage item” coming to Mr Cortese’s attention, he said it was in June 2006 after preliminary design when Mr Mok received a letter by council about the “potential heritage item” public exhibition. He said the council officers had never raised it in briefing meetings. The applicant submitted that the council had plenty of time from the Godden Mackay Logan study in 2000 to prepare a draft LEP amendment to make No. 16 a heritage item. Expecting the applicant to deal with the draft LEP prepared as a response to his development application is unreasonable.

76 Mrs Cowley expressed the opinion that the council did exhibit in 2002 a number of Urban Conservation Areas as a preliminary to gazettal, but the Minister stepped in with the high density residential rezonings along the railway-highway corridor thus suspending further action.

77 Mr Mok said he had exchanged contracts on No. 16 in October 2005, and started design early 2006. Just after he settled purchase in June 2006 the estate agent forwarded a letter, addressed to the previous owner, from council about the “potential heritage item” exhibition. The s149 certificates before and after that event showed No. 16 is not a heritage item.

Conclusions

78 In considering the evidence and submissions, I note that under the KPSO, cl 61D does not apply as it is only for gazetted heritage items. Cl 61G does not apply as it is only for gazetted conservation areas. Cl 61E does apply as it requires consideration of any nearby heritage items and No.18 is one. But, there is no issue saying that the proposal is adverse to No.18.

79 In regard to council’s decision on a draft LEP to make No. 16 a heritage item on the next amendment of the KPSO, I note the usual process is a study and recommendation, preparation of a draft gazettal, request to the Dept of Planning for a certificate to exhibit, exhibition and consideration of objections, reconsideration by council with final recommendation to the Minister, departmental report to and approval by the Minister, and then gazettal. One only gets to the point where I must give weight to “imminence and certainty” of No. 16 becoming a heritage item when a certificate to exhibit is granted. That point is not yet reached.

80 The divergent opinions about No. 16 reaching the threshold requirements for listing as a heritage item give me no comfort about the eventual outcome. Much the same as the council’s Heritage Advisory Committee, there is insufficient reason for me to refuse consent for demolition of the existing house as a “potential heritage item”.

81 The status of the existing house appears agreed by the experts as contributory in the streetscape. I note that the streetscape is not a statutory conservation area. Once again there is little reason for me to refuse the demolition of the existing house provided the replacement house is acceptable.

82 In regard to the SEPP No.1 objection to the intrusion into the 8m height limit, I note Mr Sarich’s reasoning. Cl 46(2) of the KPSO sets the 8m height by measuring from the ground level before construction at any point, to the topmost ceiling vertically above it. In this design the top floor bedrooms of the front section of the new house have cathedral ceilings that follow the rake of the roof. If the design had conventional flat ceilings on the same plane as the spring line of the roof, the proposal would comply. The statute does not contemplate cathedral ceilings inside a roof that does not result in any increased height or feature on the outside.

83 The objectives of the standard are not listed in the KPSO, but there are some in DCP38. I note that the ridge height of the roof is about 200mm lower than the existing house on No. 16.

84 I agree with Mr Sarich that the height exceedence is a technical breach, and does not result in the proposal dominating the treed landscape of Stanhope Rd, does not create overshadowing or visual or aural privacy impacts on neighbours, nor restrict any views. With the setback from the street and the maintenance of the existing height relationship to surrounding houses, the height exceedance itself cannot undermine the integrity of the streetscape. The SEPP No.1 objection is allowed.

85 In regard to the FSR, cl 4.2 of DCP 38 gives objectives. Objective (c) and (d) are complied with. Objective (a) is relevant to the streetscape assessment and a favourable finding there enables compliance with objective (a). In objective (b) the relevance is to provide soft landscaped area for landscape and tall canopy trees. The proposal will provide 60% of the site as un-built upon soft landscape area when 50% is required. There is well over 300 square metres of useable open space when 50 square metres is the requirement. And 10 tall canopy trees will be provided. Objective (b) will be achieved so the increased FSR can be accepted in this particular case.

86 The extensive evidence on the design process, and Mr Brooks input, leads me to conclude that the layout, positioning, massing, and envelope of the new house as seen from the street and relative to surrounding houses, and the heritage item at No. 18, are appropriate.

87 It remains to consider the details of the non-compliances and whether they are such that they prevent an appropriate fit in the streetscape, and relative to its site and surrounds.

88 The objectives of the residential zones of the KPSO are in Schedule 9 and the applicable clauses are 1 (a), (b) and 2(e) and (f).

89 The most relevant aspects are the requirements to be compatible with existing character of the locality, have a sympathetic and harmonious relationship with adjoining development, and in areas where one period, style or genre of architecture predominates, the new dwelling should reflect either that style or main stylistic features such as roof pitch, materials, proportions, setbacks etc.

90 I accept that good design in architecture should not mimic past styles even though Stanhope Rd does have a predominance of Federation, Edwardian and Inter-war 1920-30’s period houses. The statute provides an alternative to mimicry and the new house adopts the roof pitch, materials, proportions and setbacks of this part of Stanhope Rd.

91 The spacing between the proposal and neighbours houses is typical of the street and provides room for trees to grow and maintain the treed amenity of Ku-ring-gai and Stanhope Rd. Although the side setbacks especially to No. 16A’s drive do not comply with the DCP, it is similar to existing houses with side drives or battleaxe accesses to rear lots and trees abound in them and are proposed on this site and No. 16A’s drive. The spacing is therefore compatible and harmonious with the streetscape.

92 The semi-circular drive existing is not circular and the latter is the drive sought to be kept by the DCP on lots greater than 2000 sq m, and this lot is less. Given my agreement to the demolition of the existing house there is benefit to the streetscape of having a wider vegetated frontage by deletion of the two drive entries. It provides a street front with trees and shrubs that is similar to several houses in Stanhope, once again enhancing the character of Ku-ring-gai that emphasises buildings in landscaped settings.

93 In regard to proportions, the design was criticised as “too horizontal when the predominant style emphasises the vertical”. I look at the street elevation and see across the façade, most windows have vertical proportions, similar although larger, compared to windows seen in other houses in the street. The window openings that are wider have between 2 and 4 louvre panels that maintain the vertical proportions. The louvre panels are similar in proportion and appearance, although larger, to window shutters seen on the existing No. 16 and No.12 (and perhaps some other houses). The brick walls between the windows vary in proportions, but 7 out of 11 are more vertical in proportion than horizontal.

94 On the side elevations the window openings are much wider, although not readily seen from the street. Within those openings however the architect again provides louvre panels, with frames having vertical proportions.

95 The “no eaves” detaiI is not typical in the street but it does go with the simple form and detail of the rest of the house. The string courses also are not typical in the street although some houses do have them. In this design they tie the simple form of the house together around its perimeter , and if executed with skill and consistency, the design may achieve the elegance sought by Mr Cortese.

96 I agree with the applicant’s experts that although the new house does not mimic the Inter-war styles, it reflects the main features of that period as required in the KPSO objectives. Its simple forms are unostentatious and will not compete with the more flamboyant styles of the predominant period. The use of materials such as brick and slate and the louvre shutters are seen elsewhere in the street and add to the ability to fit in. This will result in a compatible and harmonious relationship with its neighbours and the existing character.

97 I have formed the opinion that although the strict interpretation of the articulated wall length requirement under DCP 38 is not complied with, the overall design has sufficient articulation to be acceptable.

98 In regard to the draft conditions, I note the respondent accepted the amended applicant’s version Exhibit K, provided Condition 2 of Exhibit 8 remained a deferred commencement condition. It relates to the registration of the approved subdivision that demolishes the existing house on No. 16A. The applicant wants to live in No. 16A until the new house is completed and asks that an alternate condition be imposed that no Interim Occupation Certificate for the new house be issued until the subdivision is registered and the existing No. 16A demolished..

99 The respondent asked to be heard if the appeal is to succeed, as it would create a de facto dual occupancy that is prohibited in the zone. The applicant said that both the subdivision consent and this consent can cover the situation by condition as in Exhibit K, and I agree with that.

100 I note that in Exhibit K it lists a drawing No. DA-A011B that is not in the subject plans in Exhibits B or T. The exhibits do contain drawing DA-DE003 that is not mentioned in Exhibit K. I substitute the latter for the former. The landscape plans require conditions to comply with matters arising during the hearing and they also modify the architectural and engineering plans.

101 The proposal should be approved subject to appropriate conditions as referred to in this judgment.

102 The Orders of the Court are:

___________________

K G Hoffman

Commissioner of the Court

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Citations

Mok v Ku-ring-gai Council [2008] NSWLEC 5

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CITATION:	Mok v Ku-ring-gai Council [2008] NSWLEC 5
PARTIES:	APPLICANT Edwin Mok RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10749 of 2007
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Demolition of existing house, refusal of new house and indoor swimming pool, existing potential heritage item, contributory item in streetscape, owners consent to works on adjoining land, easement for drainage on adjoining land, non-compliance of new house with statutory controls, new house non-contributory to character of locality.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance 1970 State Environmental Planning Policy No. 1 - Development Standards State Environmental Planning Policy No. 55 - Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
DATES OF HEARING:	27/11/2007 and 30/11/2007
DATE OF JUDGMENT:	10 January 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings, barrister instructed by Ms P. Murray of Minter Ellison RESPONDENT Mr C. Leggat, SC instructed by Mr T. March of Home Wilkinson Lowry