Moussa v Burwood Council

[2023] NSWLEC 1640

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moussa v Burwood Council [2023] NSWLEC 1640

Hearing dates:

2 and 3 August 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application no DA.10.2022.74.1 for subdivision of land, construction of a fence to Claremont Road, planting of trees and demolition of ancillary structures is determined by granting consent to the application subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – demolition – subdivision – heritage – orders

Legislation Cited:

Burwood Local Environmental Plan 2012, Sch 5, cll 2.6, 4.1, 5.10

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Act 1979, ss 34AA, 39

Texts Cited:

Burwood Development Control Plan 2021

Category:

Principal judgment

Parties:

Joseph Victor Moussa (First Applicant)
Elizabeth Malka Moussa (Second Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicants)
A Seton (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/53467

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA.2022.74.1 seeking consent for the demolition of some existing structures including a swimming pool, garage, outbuildings and hard paving and a two-lot Torrens title subdivision of the land (the Proposed Development) at 72 Liverpool Road, Burwood Heights legally described as Lot 85 in DP 7371 (the Site).

2. Proposed Lot A (fronting Liverpool Road and incorporating the existing dwelling house) will have an area of 839.5m². Proposed Lot B is proposed to face Claremont Road, being the secondary setback of the existing dwelling, and will have an area of 457.2m². The Burwood Local Environmental Plan 2012 (BLEP) prescribes a min lot size of 400m² pursuant to cl 4.1, however this case is about the consideration of the effect of the Proposed Development on heritage (cl 5.10(4) BLEP) as the Site is a contributory building within the Appian Way Heritage Conservation Area (Appian Way HCA) (Joint Expert Report, page 2 par 7, Ex 4) and is adjacent to the Badminton Road and Culdees Road Heritage Conservation Area (Badminton Rd and Culdees Rd HCA) (Sch 5 BLEP).

3. The Proposed Development does not include construction of a new dwelling within proposed Lot B. However, the development application demonstrates that a concept dwelling could be accommodated within proposed Lot B. The concept dwelling includes a first-floor level within the roof form which is setback approximately 11 metres from the proposed front boundary to Claremont Road and the Applicant submits would be compatible with other developments on Claremont Road.

4. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Act 1979 (LEC Act) between the parties, which held on 2 August 2023. I have presided over the conciliation conference and as the parties were unable to reach an agreement, the conciliation conference was terminated and the matter was listed for hearing forthwith in accordance with s 34AA(2)(b) of the LEC Act.

5. The Court had the benefit of inspecting the Site and the surrounding area by walking the length of Liverpool Road the subject of the Appian Way HCA and down Claremont Road in the Badminton Rd and Culdees Rd HCA.

6. The Applicant, by Notice of Motion on 3 August 2023, sought leave to amend the Development Application on 3 August 2023 by relying on amended plans, excluding demolition of a lean-to structure. Upon excluding this element, the Respondent did not object to the orders sought in the Notice of Motion.

7. The Court, pursuant to s 39 of the LEC Act, exercising the discretion of the Respondent pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, agrees to the Applicant amending the Proposed Development by relying on Demolition and Subdivision Plan Dwg 22-18/A/09 Rev 01 and New Fence – Claremont Dwg 22-18/A/16 Rev 00 dated 2 August 2023 and filed in Court on 3 August 2023 (Ex A, Tab 6). I reproduce the Demolition and Subdivision Plan at Fig 1 below.

Fig 1: Demolition and Subdivision Plan Dwg 22-18/A/09 Rev 01 dated 2 August 2023

8. The Amended Statement of Fact and Contentions (ASOFAC) filed by the Respondent on 26 June 2023 (Ex 1), sets out a single contention titled “Heritage” which is then further particularised with three subheadings, being Subdivision and Development pattern, Curtilage and Adaptability and Site Coverage. The ASOFAC concludes at page 13 that;

“the Proposed Development will adversely affect the heritage significance of the Appian Way HCA and adjoining Badminton Road to Culdees Road HCE in that it:

(i) Is inconsistent with the established subdivision and development pattern;

(ii) Would negatively affect the grain of the surrounding locality and its rhythm of houses with generous setbacks and garden settings;

(iii) Would significantly reduce the rear curtilage of the existing dwelling house, which is part of a proposed heritage item; and

(iv) Would result in an uncharacteristic increase in site coverage.

Furthermore, the proposed subdivision would result in lot sizes limiting the ability to accommodate future residential development (including additions) or adapt to the future needs of the occupants.

The site is not suitable for the proposed development.

Approval of the development application is not in the public interest and will set an undesirable precedent for similar inappropriate development in the locality.”

9. The Respondent, in closing submissions, said that the Proposed Development should be refused because of the significant impact on curtilage and setting, it is contrary to the Burwood Development Control Plan 2021 (BDCP) provision on subdivision P42, will result in insufficient depth and will be out of character in both HCAs and the future built form for Lot B is not likely to be able to be accommodated for example concept garaging suggests character/compatibility will not be achieved.

10. The Applicant’s case is that the Proposed Development, does not impact the contributory significance of the Site to the Appian Way HCA detrimentally enough to warrant refusal and relies on the Statement of Facts and Contentions in Reply (Ex 8).

11. I agree with the Applicant’s submission and I set out my reasons why I have determined to grant consent for the Proposed Development.

12. The parties rely on the Joint Expert Heritage Report prepared by Mr Patton for the Respondent and Mr North for the Applicant (Ex 4) and the parties cross examined the experts on the following three topics which I will adopt for the outline of this judgment:

1. Appian Way HCA;

2. Subdivision pattern and development; and

3. Curtilage

13. Having carefully considered the evidence before the court I have concluded that development consent should be granted and I set out my reasons below.

What is the effect of the Proposed Development on heritage significance of the Appian Way HCA? (cl 5.10 BLEP)

14. The Site is situated within Zone R2 Low Density Residential pursuant to the provisions of the BLEP. Subdivision is permissible with development consent in accordance with cl 2.6 of the BLEP.

15. The Court, as consent authority, is required to consider the effect of the Proposed Development on the heritage significance of the Appian Way HCA pursuant to cl 5.10 of the BLEP which at subcl (4) states as follows:

(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).

16. The Applicant has submitted a Statement of Heritage Impact prepared by Archnex Designs dated 18 July 2022 and filed with the Class 1 Application (Ex 1, Tab 7)

17. The Experts agree at par 8 of the Joint Expert Report (JER) “that the primary significance of the dwelling is viewing it from the front and/or corner of Liverpool Road (Hume Highway) and Claremont Road.”

18. Both the ASOFAC and the SOFAC in Reply provide a description of the locality as being characterised by consistent, low density residential development in a landscaped setting.

19. Development in Claremont Road consists of a mixture of single storey and two storey detached dwelling houses constructed of brick or masonry with pitched tiled roofs. There are varied front setbacks with a varied landscaped streetscape.

20. The Statement of Significance for the Appian Way HCA provides as follows:

“A rare Edwardian ‘garden city’ bungalow precinct with excellent Federation Queen Anne and at least one Federation Arts and Crafts architectural and landscape detail, largely 4 446723\15450186.1 intact streetscape, around an unusual and beautifully landscaped oval, containing a resident-owned recreational and sporting facility. The design and construction of the estate was based on a vision of suburban utopia of its owner George Hoskins who was instrumental in developing the steel industry in NSW. The concept for the design was based on ‘Garden City’ ideas being developed in England and USA at the time, for example, “Riverside” in Chicago by Frederick Law Olmstead and Vaux and “Bedford Park”, “Port Sunlight” and “Letchworth” in England designed by Barry Parker and Raymond Unwin springing from the ‘Picturesque Landscaping Movement’ of the 18th Century in England.”

21. An extract from the Heritage Map made under BLEP with the site outlined in blue is provided below at Figure 2:

Figure 2: Extract from Heritage Map (HER_002) from the ASOFAC

22. In order to consider the effects of the Proposed Subdivision, I now look at the evidence as to subdivision pattern and development and curtilage.

Subdivision pattern and development

23. The Appian Way HCA is subject to special provisions in the BDCP at cl 4.8.1 and includes objective O13 to retain the subdivision pattern of the Hoskins Estate, however, the overview of section 4.8.1 provides as follows:

“… Five houses (nos. 70-78 Liverpool Road, southern side) within the Conservation Area are not in the Hoskins Estate but in the Austinlee Estate and three houses of the original estate fronting Liverpool Road are not in the Conservation Area.”

24. It is not disputed that the lot shape of the five houses at 70-78 Liverpool Road, including the Site, do not fit the description of the Hoskins Estate being “[t]he properties are large, ranging from a quarter acre to three-quarters of an acre (0.1ha to 0.3ha), and irregularly shaped” (section 4.8.1 BDCP). Mr Patton tends to rely on the subdivision pattern of the Badminton Road and Culdees Road HCA when he states at pars 27 and 28 of the JER as follows:

“27. … the townscape pattern doesn’t just include the frontage, but also how the dwellings (and their yards) interacted with one another. With the proposed subdivision bluntly interrupting the established large allotments with generous rear yards/settings for large family houses.

28. Mr Patton stated that there is a pattern of rectangular allotments within the Badminton to Culdees Road HCA and the proposal would be introducing a square format with a depth of 22m. The current residential depth of allotments along Claremont Road ranges between 45m and over 65m. More than twice what is proposed.”

25. The subdivision pattern is again referenced by Mr North where he identified in the JER that provision P4 in section 4.7.2 of the BDCP requires that major redevelopment of a heritage property shall have regard to the NSW Heritage Office Guidelines (Heritage Guidelines) (Ex 6). Mr Patton is of the view that the proposed subdivision, “removing over 1/3 of a residential allotment should be considered a major redevelopment of a heritage property” (JER, par 26). Mr North notes that there is no definition of what would constitute a major redevelopment and observed that “the original dwelling is being retained with only minor and sympathetic alterations” (JER, par 18) however, Mr North proceeds to address the Heritage Guidelines at par 19 as follows:

“The grain or arrangement of buildings in this part of the conservation area is for a generally consistent front setback, buildings set parallel to the street, hipped roof forms with some gables and generally of single storey appearance. This is a strong determinant of the character. The proposal is, or could subject to future DA, be consistent with this.

The subdivision pattern, most importantly, is rectilinear and generally at right angles to the street. Although it provides a variety of depths and site areas, these are not perceptible from the public realm and do not contribute to the townscape pattern or character. The proposed allotment, although smaller and shallower than the majority, would not be perceptibly different from any others when viewed from the public realm as it would have the same width as the majority of the Claremont Road lots.

The rhythm of building frontages is established by the lot widths and these are very significant in establishing the townscape pattern. The lots in Claremont Road have a very consistent frontage width of 20m. The proposed lot B is consistent with this and, as required by the guideline, reinforces this pattern.”

26. Mr Patton’s description of the subdivision pattern leads him to conclude that the proposed Lot B will be the smallest in both HCAs (JER at par 30). I accept this as a fact however, the size of the proposed Lot B alone is not determinative.

27. In addition to what was observed during the on site inspection, the Respondent provided two aerial photographs of the area with the boundaries delineated in red outline (Ex 2). It is clear that the actual boundaries of the lots in the vicinity of the Site are not the same as what one might interpret from the Heritage map reproduced by the Experts in the JER at Fig 1 on page 6 and extracted above at [21]. Examples of different lot shapes and sizes include 78 Liverpool Road, 6 Claremont Road and 14 Claremont Road which are all L-shaped to different degrees and the depths of the lots along Claremont Road, although from an aerial perspective have a pattern, are not uniform.

28. I accept Mr North’s evidence that there is sufficient difference and variation on lot sizes and I also find that the following will go a significant way to ensure the new Lots A and B will be compatible with the character and streetscape:

1. Proposed landscaping as depicted in the Demolition and Subdivision Plan Dwg 22-18/A/09 Rev 01 to include three new canopy trees within the Site on the Claremont Road frontage and an additional new street tree, together with proposed conditions of consent 6A and 6B;

2. Construction of a new fence on the Claremont Road frontage in accordance with New Fence – Claremont Dwg 22-18/A/16 Rev 00.

Curtilage

29. The experts agree at par 9 of the JER that the BDCP “control regarding site coverage was ambiguous”. Mr Patton advised that this DCP Control was likely to be altered. It was agreed that many dwellings within the Appian Way would not meet the Control.

30. Mr North in the JER at par 40 and 41:

“40. The heritage curtilage means ‘the area of land surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance’ (Heritage Curtilages’ (1996) Dept of Urban Affairs and Planning).

41. The above mentioned document specifically envisages the concept of a reduced heritage curtilage (ie less than the original lot boundaries) resulting from subdivision. It states that ‘in these cases it is necessary to identify a heritage curtilage which is less than the lot boundary but is still sufficient to maintain the heritage significance of the item’ (p. 6).”

31. The experts have already agreed that the primary significance of the Site is viewing it from the front and/or corner of Liverpool Road and Claremont Road (JER, par 8). The rear of the Site has been modified extensively over time and includes a number of ‘intrusive’ elements and as such;

“the original rear elevation and built form no longer exist or have been concealed with a variety of accretions. Further, any original rear garden, plantings and outbuildings no longer exist along with the original relationship of the dwelling to the rear garden.” (JER par 42)

32. Mr North notes, and it is not disputed, that as proposed, the rear (southern) setback and private open space areas are fully compliant with the relevant BDCP controls (JER at par 46).

33. Mr Patton’s view is that the removal of the ‘intrusive’ elements could occur without subdivision; it is not ‘one or the other’ (JER par 55).

34. Mr North concludes that “the curtilage of significance to the existing dwelling is thus the front and front corner gardens which present to Liverpool Road and the corner of Liverpool Road and Claremont Road.” (JER par 43).

35. As the primary significance of the Site is being retained and the existing tall brick boundary fence onto the Claremont Road frontage is being replaced with a proposed new fence including the addition of 3 canopy tress and an additional street tree, I am satisfied that the proposed subdivision will not have a detrimental effect on the heritage significance of the Appian Way HCA pursuant to cl 5.10 of the BLEP.

36. I conclude by addressing the Respondent’s concern about the Proposed Development not being in the public interest because it will set an undesirable precedent for similar inappropriate development in the locality. I note that the Applicant referred to and made submissions in relation to the development consent for a child care centre at 18 Appian Way Burwood (Ex F). For the avoidance of any doubt, I have not relied on or referred to that approval and have assessed the Proposed Development on its merits and pursuant to cl 5.10 of the BLEP. Any future development application to construct a dwelling on the new subdivided lot will be subject to its own merit assessment in the context of the standards and controls of the BLEP and the BDCP. To that extent, the Applicant has provided sufficient evidence of a proposed concept dwelling envelope to satisfy the Court that the new Lot B will be capable of accommodating a compliant dwelling however, that construction is not the subject of these proceedings and consent condition 5 provides that the “development consent is for the subdivision of land, construction of a fence to the approval plan only, and does not include the demolition or erection of the existing dwelling house or other buildings on the subject land.” Further, and finally, the circumstances of the Site, a corner lot with sufficient residual size land excluding an existing dwelling to accommodate a complying minimum subdivision lot, do not appear to be replicated in the locality in order to become a precedent for residential subdivision.

Orders

37. The Court orders:

1. The appeal is upheld.

2. Development application no DA.10.2022.74.1 for subdivision of land, construction of a fence to Claremont Road, planting of trees and demolition of ancillary structures is determined by granting consent to the application subject to the conditions in Annexure A.

E Espinosa

Commissioner of the Court

53467.23 Annexure A

**********

Decision last updated: 27 October 2023