Nasab v Ku-ring-gai Council
[2015] NSWLEC 1474
•21 November 2015
|
New South Wales |
Case Name: | Nasab v Ku-ring-gai Council |
Medium Neutral Citation: | [2015] NSWLEC 1474 |
Hearing Date(s): | 23 July 2015 |
Decision Date: | 21 November 2015 |
Jurisdiction: | Class 1 |
Before: | Dixon C |
Decision: | (1) The parties are directed to provide to the Court an electronic copy of the conditions of consent, combing those to which they have agreed, within 7 days of the date of this judgment. |
Catchwords: | APPEAL- development application –subdivision- erection of second dwelling - impact of development on existing heritage item |
Legislation Cited: | Conveyancing Act 1919 (NSW) |
Category: | Principal judgment |
Parties: | Rahim Nasab (Applicant) |
Representation: | Counsel: |
File Number(s): | 11044 of 2014 |
Judgment
Rahim Nasab has made application to the Court for approval to subdivide his heritage listed property at 47 Highfield Road, Lindfield to facilitate the construction of a second dwelling on an area of the property known as forest grove.
Mr Nasab’s development application (DA 0472/13) for that purpose was refused by the Ku -ring-gai Council on 7 October 2014.
The Council decided that the proposed second dwelling was in breach of relevant height and front setback controls, and that the development generated unacceptable impacts upon the existing heritage listed dwelling and its landscaped curtilage. It also determined that the development adversely impacted upon endangered ecological communities and the riparian corridor that traverses the site.
In response to the Council’s decision Mr Nasab amended his development application (Exhibit A). The key changes include: reliance on a strata subdivision to subdivide the property, revised ceiling height details, and the rehabilitation and maintenance of the heritage listed gardens in accordance with the Vegetation Management Plan (VMP) prepared by Travers Bushfire and Ecology dated 22 July 2015 (Exhibit D). The amended application also incorporates the imposition of several positive covenants on the tile of the land aimed at protecting the heritage values of the site (Exhibit H).
Mr Nasab’s amended application, which is supported by three heritage consultants: Jennifer Hill, Robert Staas and Ian McDonald, is the subject of this appeal. The proceedings are brought pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
While the Council accepts that the amended application satisfactorily addresses the height and setback issues raised by the original application it does not accept that the amendments overcome the development’s unacceptable impacts upon the heritage significance and character of the site.
The impacts of the development on the heritage listed site are the central issues in this appeal.
Facts
The background facts and statutory controls for the site are set out in the Council’s amended statement of facts and contentions dated 3 June 2015 (ASOFAC) (Exhibit 1). Relevantly, it records that the application, which was lodged with the Council on 13 November 2013, is caught by the savings provision in the Ku-ring-gai Local Environmental Plan 2015 (KLEP).Therefore, the application must be assessed against the provisions of the now repealed Ku-ring-gai Planning Scheme Ordinance (KPSO). Although, the KLEP remains a relevant consideration under s79C of the EPA Act.
Relevantly, both planning instruments list the site as a heritage Item – (see: Schedule 7 Part 2 of the KPSO, and Schedule 5 of the KLEP) and contain objectives which seek to conserve the heritage significance of the Item: (see the objectives to cl61D of the KPSO and cl5.10 of KLPE 2015).
Also relevant to the Court‘s consideration of this application are the following provisions of the Ku-ring-gai Residential Design Manual- Development Control Plan No 38: - Aims 1.3.3; Section 3 Environmental Constraints and Site Planning – 3.1 objective ( c ); 3.1.8 Heritage Items and Conservation Areas, and the following provisions of the Ku-ring-gai Development Control Plan (KDCP) - Preliminary 1A; Part 3: Land Consolidation and subdivision – 3A.1 objective 2, Control 1(x); Part 20 Heritage Items and Heritage Conservation Areas – 20A.2 objectives 1.3, Controls 1-2, 20B.2 objective 1, Controls 1,3; 20E.1objectives 1, Controls 3.7.and 8; 20E.3 objectives 1 and 2.
The house and its garden setting
The site is predominantly rectangular in shape and has an area of 2,370m2. It has a splayed frontage of approximately 34m to Highfield Road, a rear boundary with a width of 31.6m and a northern side boundary length of 74.4m, a western side boundary length of 70m.
The land is heavily treed and has a considerable cross fall away from the north eastern boundary towards the southern corner of the site with a difference of approximately 8m in level. A Category 2 riparian corridor traverses the site, running along the western side boundary. The developed and undeveloped areas of the site are fairly well defined by a sandstone retaining wall that aligns with the western side of the existing driveway and continues towards the rear boundary.
Adjacent to the site at its southern boundary is the Paddy Pallin Reserve which is zoned 6A open-space recreation. The well-established tree cover on the southern side and the front portion of this site is similar in density and appearance to the vegetation in the Reserve except that Bangalow Palms are a notable feature of the subject site.
Vehicular access to the property is provided by a sweeping gravel driveway that has an entry point towards the eastern end of the Highfield Road frontage.
The site presently contains a part 1/part 2 storey dwelling with a pitched tile roof. The dwelling is accepted as an example of interwar Spanish Mission domestic architecture designed by the Parramatta architect, Leslie J Buckland.
The dwelling is set back 42.5m and is visible from the 32m frontage to Highfield Road. And, while the dwelling is of some architectural interest it is fair to say that it has been subsumed in extensions to the northeast and west, which create an uncharacteristic volume making the original appearance rather difficult to determine. The dwelling contains no original finishes. It has a non-original terracotta tile roof, non-original painted brick walls, some non-original windows and a non-original verandah enclosure. More relevant to its heritage listing is the relationship of the building to its landscape curtilage. According to the heritage evidence this aspect appears to be central reason for the site’s listing as a local Heritage item in Sch 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO).
That said, the Council approved in 2003, the subdivision of the site and the construction of a two storey new dwelling in a garden area of the landscape curtilage at the rear of the site. As a result the existing dwelling does not stand on its original allotment; the rear portion having been subdivided as 74A Highfield Road.
Nevertheless, the remaining allotment, with an area of 2375m², is much larger than other allotments in the vicinity. And, as Ms Conroy explained to the Court, there is a dominance of vegetation over built form in the immediate locality. This is particularly evident in the dip where Highfield Road crosses the creek line that runs from Bent Street to Provincial Road. In that location there is an unbroken tree cover through the reserve extending up Highfield Road to the north-east, and on both sides the houses are well set back from their front boundary. Beyond this section of Highfield Road in both directions front setbacks are not as generous and the established front gardens are more open with fewer large trees.
As the evidence makes plain the garden of the subject site is significant because it provides a setting for the house and this setting merges with the vegetation along Paddy Pallin Reserve and presents as a vegetated streetscape in this portion of Highfield Road. It is the dominant feature of the site. As was explained to me by Ms Conroy, the original design was innovative in its physical extent, its distinctive terraces, its indoor outdoor relationships and its American inspired planting. Of particular importance was the identification and establishment of five distinctly different garden terraces and spaces over the property each with a clearly expressed purpose and character. These spaces were:
(1)The sandstone terraces and formal rockeries with fishpond adjacent to the house, and to the east of the driveway in the front garden which was characteristic of the fashionable paved garden associated with Spanish Mission style in Australia.
(2)The gravel driveway – including its alignment and lining by palm trees and low walling.
(3)The natural forest grove on the lower south-western side of the driveway was dominated by native species and provided transitional space between the bushland of the gully and the more disciplined terraces on the high side of the driveway. The dense plantings in this area and the width of the grove at the front of the site - facilitated by the sweep of the driveway - continue to dominate views of the house from Highfield Road and the Reserve. This space also includes some informal rockeries but their date of construction is not known.
(4)The grassed garden area adjacent to the rear of the house with perimeter planting of exotic species. This area faces north and is the main recreational space at the residence.
(5)A utilities/service yard at the northern end of the block.
Apart from the service/utility yard, the original spatial and functional qualities, garden architecture, plantings and the original purpose and character of each area remains- albeit in various states of repair.
In addition to the architectural significance of the house I am also told that the site also has some social significance having been used by the Australian director Ken Hall as a location for his feature film “Thoroughbred” in 1935/36.
As stated the real heritage issue in this case is the impact of the development on the relationship of the exiting dwelling to its garden setting, in particular:
(1)The outlook from the front entrance and terrace across the garden and driveway and ;
(2)the view to the house along the driveway.
Therefore, the quality of that garden setting is a primary consideration in evaluating the likely impacts of the proposed subdivision and the construction of a new dwelling.
Before I consider those matters, I need to explain the detail of the amended proposal.
The amended proposal
The amended proposal provides for a subdivision that will create two strata title allotments which exceed the minimum allotment sizes for regular and battle-axe allotments in this zone namely: 862 m² and 1514m² respectively. The subdivision boundary will follow the outer edge of the low sandstone dwarf wall bordering the southern side of the existing driveway. The subdivision will commence at the front entry gates to the point east of the existing carport, and then run south at a splay to the southern boundary of the property. The existing low sandstone dwarf wall will remain as the only marker of the boundary. It is not proposed to erect a fence that would interrupt the continuity of the landscape.
The new dwelling house will be set forward of the front wall alignments of the existing houses on 47 and 43 Highfield Road but at a distance that is consistent with the front setbacks of other dwellings along Highfield Road. Unlike the other houses in Highfield Road the new dwelling will be placed at an angle to the street in response to the stepped topography and to minimise loss of palm trees. It is important to note that unlike the other houses in Highfield Road with more open garden settings, the proposed dwelling will be set amongst well-established plantings within the forest grove area of the site.
According to Ms Hill the development site was chosen in order to minimise tree loss and to avoid impacts on the introduced North American species, the Angophoras and Turpentine. While up to 13 palm trees will need to be removed over the house footprint they will be replaced by more than 13 Palms to maintain the dominance of that vegetation over built form. Furthermore, as Ms Hill explained, the house is designed to touch the land and float slightly above it supported on steel posts on pad footings. This design approach apparently minimises impacts within the critical root zone of the nearby trees and allows the natural surface water flow to run uninterrupted (albeit with slight modification to disperse the overland flow around the sandstone wall of the house).
The footprint of the new dwelling is quite small - a product of its two-storey configuration and its three bedroom modest scale. The façade is intended to replicate garden features. It will have a rock face finish and present as garden wall. The material and colour selections are aimed at achieving very low visual impact. The dwelling will have dark grey window frames and louvers, bronze tinted glass and warm mid-grey structural framing, gutters and facades.
It is intended that the new dwelling will blend into the setting of the shaded ‘forest grove’ and the warm mid-grey of the tree trunks. As Ms Hill explained the building’s siting, replacement tree plantings and the palette materials and colours have been carefully considered with regard to the views into the site and towards the existing house from the driveway and Paddy Pallin Reserve and views from the house to the front part of the land.
At the site inspection the Court walked through the adjoining Reserve and along Highfield Road with the parties and their experts in order to appreciate the various viewing points to and from the site and any impacts of the proposed subdivision and new dwelling from the public domain in Highfield Road and the Reserve. These public views were of particular concern to the two objectors to the application and Ms Conroy (Exhibit 2, Tab 6).
However, these views were of no concern to the applicant’s heritage experts. Mr McDonald, Ms Hill and Mr Staas are of the opinion that the new dwelling will sit sympathetically within the various viewing corridors. In fact Ms Hill described the visibility of new house from views into the site from Highfield Road and Paddy Pallin Reserve as minimal due to its siting within the dense vegetation of the Forest Grove which will be augmented by additional planting. And, to the extent that the new house will be visible, Mr McDonald and Mr Staas’ evidence is that its small footprint and sensitive selection of colours and materials will blend into the shady environment of the forest grove. In short, the applicant’s experts agreed that the primary arcs of view to and from the front of the existing Spanish Mission style house will not be affected by the development.
Vegetation Management Plan
The VMP proposed by the applicant has been prepared to manage the land identified within the site as having riparian /biodiversity significance.
The VMP describes the existing vegetation, natural features, proposed vegetation, sediment and erosion control and land stabilisation works. The VMP has selected appropriate species to be planted that are representative of the STIFF community. The VMP describes each task necessary for the implementation of the plan, the duration and priority, maps, diagrams and plant species lists are contained within the plan.
Relevantly, the Council accepts that the VMP will ensure the enhancement, protection and long-term viability of the STIFF community and the riparian channel vegetation upon the site. It will retain the vegetation within the Category 2 water course, and this will ensure compliance with Council's KPSO, riparian biodiversity land controls. The proposal is also considered to comply with the New South Wales Office of Water’s general terms of approval (GTAs). In short the terms of the VMP is entirely acceptable to the Council, and it raises no objections to the application on ecological grounds.
In addition to the VMP the applicant agrees to carry out additional works to conserve the existing dwelling on the site. The Schedule which is (Exhibit G) requires works to be completed in accordance with the landscape plan DA 13E which is part of the application. These works are acceptable to the Council.
The applicant has proposed that a public positive covenant be registered on the title under s 88E of the Conveyancing Act 1919 in favour of Ku-ring-gai Council in a form approved by Council requiring the registered proprietors of each strata allotment to maintain and manage the vegetation on the property in accordance with the VMP. It is also proposed that a covenant be imposed to require the registered proprietors of Lot 2 to obtain the consent of Council prior to any crown pruning works (with the exclusion of deadwood) being undertaken on the Angophora costata (Sydney Red Gum which is identified as tree number 7) in the VMP.
Furthermore, the Body Corporate to the Strata Subdivision will be required to:
(a) maintain an ongoing contact with those persons listed in part five of the Vegetation Management Plan approved by the Development Consent who are responsible for carrying out the obligations under the Vegetation Management Plan;
(b) maintain an ongoing contact with a qualified landscaper/gardener to maintain the planting and works specified in the landscape plan and conservation schedule of works approved by the Development Consent;
(c) prepare bylaws which permit access for persons to carry out the tasks and obligations detailed in (a) and (b) above.
The applicant also proposes conditions which preclude the construction of a fence or barrier structure to be erected between proposed Lots 1 and 2 or erected between proposed Lot 2 in the adjoining Reserve. The conditions also require the area under the dwelling on proposed Lot 2 to be landscaped and maintained in accordance with the VPM. The consent precludes this area being used for storage.
The Council has not raised any particular issue with these proposed covenants and conditions.
The council’s heritage evidence
As stated earlier, the Council’s heritage advisor Ms Conroy does not support the application. In the joint report (exhibit 3) Ms Conroy sets out in great detail her views.
Ms Conroy is of the opinion that the heritage significance of 47 Highfield Road relies heavily on the integrity of the relationship between the house and the whole of its garden setting. This includes the designation and formation of the five distinct landscape units, four which have been retained with core structural characteristics and plantings in accord with the original design intent for over 30 years. In her assessment the development area for the second dwelling, being the forest grove landscape unit, currently reads as an undeveloped space dominated by native trees that provide both a visual and spatial contrast with the more designed informal spaces closer to the house. It is a transitional space that integrates the adjacent Reserve for the property and effectively expands its apparent curtilage into the spaces of the reserve.
She believes that a subdivision of the site will have an unacceptable adverse impact on the identified cultural landscape heritage values of the property. These heritage values include the physical, natural and spatial attributes that provide evidence of the original designs sophisticated response to the challenges of the site in its setting. The form of the proposed subdivision, will retain the perimeter of the existing legal curtilage but the legibility of this curtilage will be adversely impacted because the internal space will be divided into two lots, each held in separate ownership and also because it will facilitate the erection of a new dwelling on Lot 2.
The proposed subdivision boundary will excise almost all of the front part of the forest grove landscape unit between the existing house and Highfield Road meaning that Lot 2 will effectively be the front garden of Lot 1 with only the driveway sharing the width of the street elevation. This subdivision will be in addition to the 2004 subdivision and development of the utility area landscape unit, and will leave only three of the original five landscape units - the upper terrace, the rock garden in the front of the original house, the grass terrace at the rear and driveway on the same allotment as the original house.
The ongoing management of the heritage significance of the property will not be facilitated by the proposed subdivision and consequent ownership by separate parties because each owner has the potential to desire different approaches to site management and in this regard, insufficient evidence has been provided that the conservation of each of the heritage values of the item will be insured through the subdivision of the site and not only the riparian issues addressed in the proposed landscape plan of the management (the VMP).
While Ms Conroy considers that the VMP has the potential to establish an appropriate regime for the conservation of riparian values of the forest grove she submits that its successful implementation does not depend on the subdivision of the site. Although she is concerned that the VMP and accompanying landscape plan do not provide adequately for ancillary development such as paths and outdoor close drying facilities that will be likely to be required due to the separate occupation development of Lot 2.
Ms Conroy is strongly of the opinion that the proposed subdivision will “facilitate the erection of an additional dwelling and ancillary development within the existing curtilage which will obscure significant views over the property from the public domain of Highfield Road and Paddy Pallin Reserve and will therefore impact on the potential to continue to read and understand the intended role of this part of the property as an undeveloped space that provides aesthetic and physical contrast to the more structured elements to the east of the driveway”(Exhibit 3 ).
According to Ms Conroy the proposed development will have a significant adverse impact on the historic and aesthetic role of the forest grove as part of the house property and on its potential to continue to provide a natural setting for the existing house. The existing Spanish Mission house is set well back from the street and close to the north-eastern boundaries. When viewed from the public domains of both Highfield Road and the Paddy Pallin Reserve, the prevailing aesthetic quality of the site is one of dense bushland and rainforest. The existing dwelling reads as a modest element within its natural setting, a landscape character which is intentional and reinforced by the retention of the alignment of the earlier track that wound through the forestry is now the driveway, as well as by the ongoing management of the gully banks with little cultivation other than the planting of the palms along the driveway edge by the original owners, or indeed, evidence of active garden care particularly in recent years.
She believes that “…the historic and contemporary internal relationship between the house and its garden spaces and those between the house and the Reserve are simply complex and significant. The physical and visual links between the house and its landscape units demonstrate the hierarchal planning of the site and the gardens transitions between the Spanish Mission form detailing of the upper terrace, the sinuosity of the driveway alignment and its primary reinforcement and the natural qualities of the surrounding bushland”.
Ms Conroy contends that the forest grove was purposely planned and maintained to provide a natural backdrop to views outward from the terrace against the Hollywood Boulevard style planting of palms along the driveway. The erection of a dwelling of the scale and size proposed will be clearly visible from the original house and will have an unacceptable adverse impact on the legibility of the spaces, and the forest grove as a space free of obvious signs of human intervention.
In her assessment, the elevation of the structure above the embankment will increase its apparent bulk when viewed from the Reserve and Highfield Road and will be visible in the foreground of views over the heritage item. The configuration of the site and its relationship with the adjacent Paddy Pallin Reserve, a public space with walking paths, means that the relationship between the house, its garden setting and the public domain is one that is engaged with for at least 80m along Highfield Road and 90m within the Reserve. The quality of the views between the two is spatially complex and changes along the boundary.
In this regard, Ms Conroy recognises that the new dwelling will be set beyond the main bend in the driveway when viewed from the street and that the existing planting along the edge of the driveway is dense with limited opportunity to see through the vegetation by existing planting. Despite those constraints Ms Conroy believes that the new structure will be readily visible from further west along Highfield Road, including from adjacent to the entrance to the Paddy Pallin Reserve as well as from the pathway that leads through the Reserve. Unlike the garage structure on the adjoining property to the north-east - at 45 Highfield Road with a siting and setback at a 45 degree orientation similar to that of the proposed development, that structure is only one storey high, not the two proposed in the subject application and its footprint is much smaller.
For those reasons, Ms Conroy considers that the development’s siting, orientation and scale will have significant adverse impacts on the foreground of views over the property from the streetscape of Highfield Road.
Ms Conroy also believes the development will adversely impact upon the aesthetic qualities of the Reserve. According to Ms Conroy the part of the site to be subdivided for development, the forest grove is a steeply sloped embankment that rises from the creek that divides the property from the similarly sloped bank of the Reserve. The lack of a dividing fence or other visible development on the eastern bank (within 47 Highfield Road) means that the two sides read as an effectively unified space. The main discernible difference between the forest grove and the Reserve when viewed from the Reserve is that the eastern bank of the gully (within 47 Highfield) is less well maintained and much of the slope is dominated by emergent Bangalow Palms, whereas the western bank (within the Reserve) has benefited from a well-managed and disciplined approach to bush regeneration by the local bush care group and reads as open woodland.
Ms Conroy is of the opinion that the existing Spanish Mission house on 47 Highfield Road is presently largely obscured with the white walls glimpsed through the tangle of natural vegetation for much of the Reserve. In her assessment the proposed development will be a significantly more prominent element in the visual catchment of the Reserve and will be clearly visible within it, particularly when the more disciplined approach to garden management proposed in the VMP is affected.
Furthermore, she believes that the scale and materials of the new structure will introduce an aesthetically prominent built element into the presently undeveloped natural landscape at the southern end of the Reserve.
In summary, Ms Conroy is of the opinion that the development is inconsistent with the objectives of clause 61D (1b) of the KPSO. This objective requires the conservation of the heritage significance of the heritage items and heritage conservation areas, including associated fabric, and settings and views: cl (1) (b). In Ms Conroy’s assessment the proposed development will not be consistent with this objective because it will not conserve the heritage significance of the site and its setting as a locally significant Spanish Mission house and garden characterised by distinctly planned and plant garden units that transition between the terraces close to the house and the natural landscape the creek gully and Paddy Pallin Reserve beyond. The subdivision will not conserve the heritage significance of the heritage item, nor the environmental heritage of the Ku-ring-gai area because it will lead to the fracturing of the curtilage of the Item and will facilitate the development of an additional dwelling into the forest grove landscape unit, a space characterised by its remnant and natural plantings and generally undeveloped landscape quality.
The scale and siting of the proposed new dwelling will not conserve the heritage significance of the heritage item or the environmental heritage of Ku-ring-gai because it will have an adverse impact on the fabric, views and setting of the item, including on the integrity and legibility of the landscape units from within the site and also the associated views from the wider landscape setting of the public domain of Highfield Road and the Paddy Pallin Reserve. Furthermore, the development will not conserve the heritage significance of the heritage item because it will impact on the setting of the item, including on the strongly expressed and substantially intact visual spatial environmental continuity between the forest grove landscape unit and the adjacent Paddy Pallin Reserve: including the potential of the two sides of the gulley (the forest grove landscape unit and the corresponding slope of the Reserve) to continue to read as an extended natural curtilage of the heritage items.
The Ku-ring-gai DCP 38
Ms Conroy is of the opinion that the development does not achieve aims (1.2) 3. of the DCP 38 and objective 3.1(c) and (d) and 3.1.8 (Exhibit 3 p16). In her assessment, the development does not conserve and protect the natural, built or cultural heritage significance of Ku-ring-gai, including heritage items and conservation areas and encourage development which respects that significance.
She considers the forest grove to be one of the most sensitive and contributory parts of the site and that the proposed development, which includes a subdivision of the site and erection of a new dwelling house in this area which is also the front garden of the site, will not respect the natural, built-in cultural heritage values of the Items. Rather, the development will adversely impact on the natural and undeveloped qualities of the forest grove landscape unit and will introduce a new dwelling of the scale and siting that will challenge the significant built heritage values of the property, and the contribution that these make to the views over the property from the public domain. This will impact on the historic and aesthetic relationship between the house and its garden which she believes epitomise the cultural values of the era as expressed through the use of the front garden area, including the forested grove, as the set for the Ken Hall movie “Thoroughbred”.
Ms Conroy is of the view that development will result in the fragmentation of a large lot which is dominated by garden and natural landscape space which is generated by the owners wishing to increase the density of development on the site through the subdivision of much of the front garden and erection of an additional dwelling in the former garden space. This is not consistent with objective D of C3, Environmental Constraints and Site Planning of the DCP 38.
Ku-ring-gai Development Control Plan 2015
Ms Conroy has similar views in respect of the development’s compliance with the aims of KDCP2015 which contains objectives which are consistent with the KPSO and are a relevant consideration in the public interest under s 79C as a draft instrument at the time of lodgement of the application.
The aims of KDCP 2015 are at 1A.5. Aim (IX) is particularly relevant to the conservation of heritage significance. It seeks to ensure that the heritage significance of the heritage items and heritage conservation areas is conserved and encourages development which respects that significance. The DCP contains detailed provisions intended to ensure that the development is able to satisfy this aim. Objective 2 states to:
Limit the impact of new development on natural, environmental, cultural and historical significance of the site and the amenity of adjoining properties.
Control 1 (X) provides: that the lot shape, orientation and design of consolidated and subdivided lots is to demonstrate the following: (X) respect for and conservation of cultural heritage, including any Aboriginal place or site of heritage significance.
In this case, the development will include the strata subdivision of the lot currently occupied by the heritage Item. One strata unit will include the major landscape unit known as the forest grove and the other the remaining of the site. In Ms Conroy’s opinion, this lot shape will not respect the heritage significance of the evidence of the original site planning and in particular the designation of the landscape units that together established that historic, associative and aesthetic heritage significance of the heritage item and its curtilage as a cultural landscape comprised of discrete but interdependent landscape units.
Part 20 of the DCP deals with heritage items and heritage conservation areas. Part 20A .2 deals with subdivision and site consolidation of a heritage item. Objective 1 requires: to ensure new subdivisions and lot consolidations do not have an adverse impact upon the curtilage and the setting of heritage Items.
Ms Conroy contends that the proposed development will not satisfy this objective because it will have an adverse impact on the curtilage and setting of the heritage Item through the division of the curtilage of the item into two Strata units. Objective 3 provides: to ensure that new development respects and conserves the heritage item, its garden setting, it streetscape and important view. Ms Connery contends that the proposed development will not satisfy this objective because it will not conserve the integrity of the curtilage of the heritage Item and it will also facilitate the erection of a new two storey dwelling within a highly sensitive part of the heritage item which will be clearly visible from the street, Highfield Road and from the public domain of the Paddy Pallin Reserve. In effect, it will compromise the curtilage and setting of the heritage Item and thereby adversely affect the cultural significance of the Item as a designed cultural landscape that demonstrates the principal features of the Spanish Mission house and garden as demonstrated in the suburban cultural landscape of Ku-ring-gai. Further, the subdivision will also have an unacceptable adverse impact on the special garden design and landscape setting qualities of the Item, including the integrity of the forest grove landscape unit as an undeveloped natural space that provides a setting for views to and from and over the item.
Additionally, Miss Conroy contends that the proposed development will not satisfy Objectives or Controls 20E.1 building design, Objective 1, Controls 3, 7 and 8. She maintains this view based on the reasons earlier outlined and the impacts of the proposed siting of the development in the front garden space of the Item is a position that will be prominent in views over the heritage Item to the original Spanish Mission house. She believes that the siting of the additional dwelling close to both Highfield Road and the Paddy Pallin Reserve will introduce a prominent element in the foreground of views over the site from these public places. The apparent scale of the two storey building will be increased due to its siting on an elevated platform over the steep embankment and counter pitched skillion roof when viewed from the public domain and will result in a building height of between three and four storeys.
Lastly, in respect of objective 20E3, gardens and landscaping, Ms Conroy contends that the proposed development will not satisfy the objectives of these controls 20E3.1, particularly those addressing impacts on the Item’s landscape units and the role the forest grove plays in establishing an undeveloped bushland setting, (albeit, with self-seeded native and not endemic palms), for views to and from and over the heritage item and also its role in providing a strongly expressed spatial and aesthetic integration with the adjacent Paddy Pallin Reserve (Exhibit 3 p19).
The applicant’s heritage evidence
Ms Hill gave evidence on behalf of the applicant at the site view and in the Court. She also prepared the joint report with Ms Conroy (Exhibit 3). Her evidence is supported by the views expressed in writing from Mr McDonald in his report dated June 2014 and Mr Staas in his report dated July 2014 (Exhibit F).
In response to the criticism made by the Council’s Heritage Officer regarding the scale and character of the proposed new residence, the applicant’s experts are of the opinion that the revised application is numerically compliant with all aspects of the planning controls. Furthermore, as the montages and photographs presented at the hearing suggest the potential impact of the development on the setting of the heritage item in views to and from the item from the public domain result in acceptable impacts. They also believe that there will be little boundary definition between the two allotments as the upgraded existing diagonal driveway on the site will provide joint access to both the existing house and the proposed new development, being Lot 2.
The proposed new house is aligned with the driveway orientation rather than the front boundary and its diagonal positioning to the street frontage reduces its visibility from the public domain. This diagonal orientation also reduces impact on views of the house across the site from the adjoining public Reserve. Mr Staas is of the view that the siting has been selected to maintain the bulk of the existing vegetation and to allow for replanting of mature palms to replace those that are to be removed in order to maintain the existing character. Mr Staas is confident that the location of the new house, the relatively small footprint and the retention and supplementation of the existing substantial landscaping on the proposed Lot 2 will not reduce the visibility of the existing house from Highfield Road along the existing driveway alignment, or from Paddy Pallin Reserve which adjoins the site to the south-west.
The design of the new proposal includes a substantial sandstone clad wall that will act as a naturally recessive screen and foil to the heritage Item and its location against the driveway. The elevated glazed form of the main part of the new house will have low visual impact on the landscape setting allowing a very lightweight appearance amongst the trees that is also recessive in character. The cantilevered form reduces any significant physical impacts on the riparian zone and complies with the Council's requirements. According to Mr Staas given the previous changes to the site and the modified and deteriorated nature of the existing Item in its existing setting in terms of its comparative significance in Ku-ring-gai, the house and garden are representative examples of interwar Spanish Mission living environment but have a low level of integrity and are not exceptional in quality but are capable of being interpreted on close inspection.
The existing buildings on the site have been assessed in accordance with the heritage assessment criteria guidelines established by the New South Wales Heritage Branch as being of moderate significance. Mr Staas is of the opinion that the degree of impact of the current application on a place with a starting point of low/moderate intrinsic heritage value as is represented by the proposal for the site of 47 Highfield Road, Lindfield is acceptable and will not detract from the identified heritage values demonstrated by the representative example of interwar residential development. In his assessment, the application by virtue of its form, siting, materials and design and setting will have minimal impact on the Item’s principle setting on the limited public views of the building from the public domain in Highfield Road and the Paddy Pallin Reserve.
Miss Hill agrees. While accepting that the heritage values of the property are demonstrated in part through the mature and clearly expressed relationship between the house and its garden setting she is of the opinion that the impact of the new development on the heritage significance of the heritage Items is minimised by the development’s minimal intervention into the fabric relating to the heritage significance of the Item as the house and the garden. She also believes the impact of the new development on the heritage significance of the heritage Item is minimised by the location of the new building within a clearing within the trees located to the west of the eastern entry driveway and beyond the primary view of the house. No indigenous trees are to be removed. The self-seeded palms, which do not relate to the 1930s planning, are relocated to reinforce the curved driveway which defines the setting the house. The new house is separate to this existing structure and is of a modest scale which reads as an ancillary building within the landscape setting. The materials are consistent with a stonewall on the landscape.
The views of the heritage item house will remain largely unchanged from the public domain of Highfield Road and the adjacent Paddy Pallin Reserve within the heritage Item. The strata subdivision is intended to facilitate improvements to the curtilage of the heritage item by the associated landscape improvements proposed in the VMP. Ms Hill believes that the proposal complies with the aims and objectives of the relevant planning controls.
Consideration
Following the lodgement of the amended plans, the only real issue in this case is the acceptability of the development under cl 61D (4) (which in effect is the same as cl 5.10 of the Ku-ring-gai LEP 2015). Turning first to the Planning Scheme Ordinance which applies by dint of the savings provision, a heritage item is defined to mean “a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Sch 7.” In Schedule 7 – heritage items are divided into two parts. The first part deals with buildings or works with significant interiors. Part 2 deals with other heritage items – (the numbers refer to street numbers unless otherwise specified). In this case, the schedule refers to the street number 47 Highfield Road.
Relevantly, the property is not located within a heritage conservation area but is located within the area zoned residential 2C and the proposed development is permissible with consent.
Section 61D contains the heritage conservation provisions relevant to the present application. Objective B provides “to conserve the heritage significance of heritage items in heritage conservation areas, including associated fabric, settings and views.” Clause 61D2 provides “that Development Consent is required for (erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation are)”, and cl 61D4 requires “the Council 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."
Having considered the views expressed by all the experts including Ms Hill, Mr Staas, Mr McDonald and Ms Conroy the weight of the expert evidence supports a finding that the heritage significance of the heritage item as a Spanish Mission house and garden is largely unaffected by the proposal.
After a view of the site from the relevant viewing points I must agree with the applicants’ heritage experts agreed position that the views of the heritage item will remain largely unchanged from the public domain of Highfield Road and the adjacent Paddy Pallin Reserve and from within the heritage Item.
Having considered the effect of the proposed development on the heritage significance of the Item including the terraced garden and open spaces, I am satisfied for the reasons explained by Mr Staas, Ms Hill and Mr McDonald that the proposal is a sensitive design in its amended form and will not have an unacceptable impact or affect upon the heritage significance of the house or terraced gardens and open spaces.
In my assessment the application by virtue of its form, siting, materials, design and setting will have minimal impact on the heritage item’s principle setting or the limited public views of the building from the public domain in Highfield Road or in the Paddy Pallin Reserve. As noted earlier, the house at 47 Highfield Road does not stand on its original allotment as the rear portion has been subdivided at 47A Highfield Road. Nevertheless, the 2375m² area of the existing allotment is much larger than the allotments in the vicinity and can accommodate the proposed second dwelling and subdivision.
It is the case that the experts agree that the existing house is a modified example of the interwar Spanish Mission style of residential architecture. However, the remaining original elements of the single storey house are considered to be representative of the style of the architecture in the period but not exceptional. If this application is approved some aspect of the heritage Item will be restored. This must be a positive heritage outcome.
As discussed in Mr McDonald’s report the significance of the house and curtilage is the relationship of the house to the garden setting, in particular the outlook from the front entrance and terrace across the garden and driveway and the view to the house along the driveway. The quality of the garden setting is therefore the primary consideration in evaluating the likely effects of the proposed subdivision and construction of a new dwelling house.
In undertaking that evaluation exercise Mr McDonald invites me to consider the following key questions :
(1)How do the existing views to and from the front of the listed Spanish Mission style house compare with the views that would be available if the proposed dwelling house is built?
(2)Would the siting and landscape designs significantly alter the dense tree setting?
(3)To the extent that the proposed dwelling house might be visible in views to and from the existing house, would its visibility be acceptable?
If I carry out the evaluation exercise as outlined Mr McDonald believes that I will conclude that there will be no physical impact on the heritage listed house or the extent of the original garden features such as driveway, retaining walls and terraces. The primary arcs of views to and from the front of the existing Spanish Mission style house will not be affected; the visibility of the new house and views into the site from Highfield Road and the Paddy Pallin Reserve will be minimal due to its siting within the dense vegetation within the forest grove and augmentation by additional landscaping. And, lastly, to the extent that the new house will be visible, its small footprint and sensitive selection of materials and colours will blend into the shady environment of the forest grove.
I agree with Mr McDonald.
Have considered the questions outlined above in the context of my understanding of the evidence including my observations of the site from and to the various viewing points in the Paddy Pallin Reserve and Highfields Road the development is acceptable. This conclusion accords with the expert opinions expressed by Mr Staas and Ms Hill.
Accordingly, I am satisfied that the amended application offers a sensitive design which conserves the heritage significance of the heritage item, including its associated fabric, setting and views as required by s 61D of the KPSO. It also achieves the long-term survival of the Ku-ring-gai native and exotic tree and vegetation cover which is a general aim of the DCP in cl 1A.5. Furthermore, I am satisfied that the development encourages the reinforcement of the Ku-ring-gai distinctive tree canopy character through the Vegetation Management Plan which is a relevant objective in cl 31D of the Ku-ring-gai Residential Design Manual Development Control Plan No 38. This in turn discourages fragmentation of the established landscape character. The development is acceptable on its merits after an assessment under s79C of the EPA Act.
CONCLUSION
For the reasons stated I propose to grant consent to the development application subject to the Council’s draft conditions including those also proposed by the applicant in Exhibit H. Upon receipt of those conditions I will publish my final orders. For the reasons indicated the Court makes the following directions:
(1)The parties are directed to provide to the Court an electronic copy of the conditions of consent, combing those to which they have agreed, within 7 days of the date of this judgment.
Susan Dixon
Commissioner
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Amendments
26 November 2015 - Typographical errors
Nasab v Ku-ring-gai Council [2015] NSWLEC 1474
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