P D Anderson Holdings Pty Ltd v Newcastle City Council

[2005] NSWLEC 17

Land and Environment Court

of New South Wales

CITATION:

P D Anderson Holdings Pty Ltd v Newcastle City Council [2005] NSWLEC 17

PARTIES:

APPLICANT
P D Anderson Holdings Pty Ltd

RESPONDENT
Newcastle City Council

FILE NUMBER(S):

10475 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- refusal for two
two storey townhouses - overdevelopment of site - height - bulk and scale - streetscape - setbacks - character - architectural design - heritage

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Lower Hunter Urban Housing Development Control Plan
Newcastle Local Environmental Plan 2003

DATES OF HEARING:

10/12/2004

EX TEMPORE JUDGMENT DATE:

01/19/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
Instructed by Paul Hines Solicitor

RESPONDENT
Mr J Maston, barrister
Instructed by Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

19 January 2005

10475 of 2004 P D Anderson Holdings Pty Ltd v Newcastle City Council

JUDGMENT

1 This was a class 1 appeal No. 10475 of 2004 between Newcastle City Council and PD Anderson Pty Limited in regard to the refusal of consent for two, two storey townhouses at No. 55 Glebe Road, The Junction.

2 The site for the townhouses has a frontage of 13 m to Glebe Road, and an area of about 212 sq m. It is relatively flat with an existing single storey house, and two frangipani trees out the front. The applicant had drawn a number of different designs during negotiation with council staff, since the original application in February 2003. The final design in Exhibit A as modified by Annexure M to Exhibit C were for 2 one-bedroom semi-detached townhouses, each with a garage, entry, laundry, bedroom and bathroom on the ground floor, and living rooms on the first floor, each with a balcony overlooking Glebe Road on the north side of the site.

3 The garages were directly accessed off Glebe Road. There was a boundary fence and gates on the street frontage. The townhouses abutted the side boundaries adjoining both east and western neighbours. There was a courtyard at the rear of each townhouse, each with a variable width of 2.3 m to 3.2 m, and length of 6.5 m.

4 At the street front, the garage to the eastern Unit No. 1 had a 2 m street setback and Unit 2 had a 3 m setback. The balconies above cantilevered forward to give a 1.2 m and 1.6 m setback to the front boundary respectively.

5 Unit 1 had a cathedral ceiling gable and roof over the balcony with a gable ended main roof with its ridge parallel to the street. During the hearing, the open end of the gable above the balcony was filled in with horizontal weatherboards to be similar to gables on houses in the row along Glebe Road.

6 Unit 2 had a flat roof over the balcony with a hipped main roof. The balconies were separated by about 2 m due to the internal stairs to the units.

7 The property on the east side of the proposal was an old single storey shop on the corner of Glebe Road and Watkins Street. It had what was an attached single storey cottage on the side adjoining No. 55. The cottage is now a kitchen and the shop is now a restaurant. There is a right of way between the cottage kitchen and No. 55 that benefits No. 55 but it is not intended to be utilised in this development application.

8 Behind the proposal was a modern two storey brick house built boundary to boundary on what had been the back yard of No. 55 Glebe Road. The new house had vehicle access to Watkins Street, as had No. 55 before the new house was built. There was a narrow courtyard to the new townhouse abutting the rear boundary of the proposal, and a high masonry fence separating them.

9 The new house at the rear had been approved as a dual occupancy with the existing house on No. 55. A subdivision to create separate lots for each house of the dual occupancy had been created. This resulted in the subject lot in which the old house stood. It was a single storey weatherboard cottage with a front verandah and a hipped and gabled iron roof of the same age and general style as the existing houses in the row along the street from Nos. 53 to 75 Glebe Road.

10 The Court heard the respondent’s evidence from:

• Mr F Taylor, objector and resident of No. 57 Glebe Road on the west side of the proposal,
• Ms M Gallagher objector and resident of No. 73 Glebe Road,
• Mr G Sakoff, objector and resident of No. 61 Glebe Road,
• Mrs H Sakoff, objector and resident of No. 61 Glebe Road,
• Mr P Cunliffe-Jones, objector and resident of No. 67 Glebe Road,
• Mrs K Cunliffe-Jones, objector and resident of No. 67 Glebe Road.

11 There were expert reports of Mr C Mahler, town planner and Mr C Brady consultant heritage architect. The National Trust had objected via a letter signed by its chair, Mr K Parsons.

12 The applicant’s evidence was heard from:

• Mr I Easton, architect and designer of the proposal,
• Mr I Grant, heritage town planner.

13 The issues in the appeal were amended during the hearing, and those remaining were:

1. Whether the proposed development constitutes an overdevelopment of the site.
1.2 The high bulk and scale of the proposed development is in contrast with the character of the existing development on adjacent land
2. Whether the proposed development is inadequate, having regard to the objectives, performance criteria and provisions of cl 3.4, streetscape and front setbacks of Lower Hunter Urban Housing Development Control Plan .
4. Whether the proposed development has an inappropriate building envelope having regard to the objectives, performance criteria, and provisions of cl 4.4 side and rear setbacks of the Lower Hunter Urban Housing Development Control Plan .
Note : This issue could be deleted if the applicant accepted certain conditions of the respondent.
6. Whether the proposed development will have an unacceptable impact on the character and streetscape of the locality.

6.1. The proposed development is not sympathetic in scale and architectural design to the existing cottages in the immediate vicinity.

6.2. The existing dwelling and the cottages in the vicinity have heritage significance.

14 The adjoining house at No. 57 Glebe Road is setback 3 m to the front verandah, and 5 m to the front wall of the house. Its driveway runs down the east side adjoining the boundary with No. 55. Cars can turn in the backyard of No. 57, so they can exit and enter in a forward direction.

15 Although not raised in the formal issues, nearly all objectors made the following points in giving evidence on site. Glebe Road was a very busy road and a declared Main Road by the Roads and Traffic Authority. It was four lanes wide. The kerbside lane was used for parking during the day, and was a clearway in peak hours. All the other houses, but not the proposal, could turn inside their yards, to enter and exit in a forward direction.

16 Due to the narrowness of the driveways and footpath crossings, and the carriageways of the street, the residents said it was a difficult manoeuvre to enter and exit. It required great care regarding safety. The reasons were, to turn in and out of a driveway, the narrow carriageways of Glebe Road required the cars to use the inside lane at the centre of the road and turn across the outside lane into or out of the driveways. In peak hour this required great care due to cars coming along the kerbside lane, usually travelling at the speed limit.

17 Out of the peak hour, due to the shopping centre opposite, the kerbside lane was full of parked cars, and due to the demand for parking the cars usually parked right up next to the footpath driveway crossings. That meant a driver had only a narrow gap of the driveway to aim for, about 2.5 m wide, between cars.

18 The proposal intended to have two driveways. In both driveways, a car had to reverse out into the street, either into 2 fast moving lanes at peak hour, or between two parked cars during the day and night. The night time parking was due to the number of restaurants opposite and adjacent. The residents considered reversing out to be very unsafe.

19 Also it was noted the plans showed gates at the street boundary of each driveway. The footpaths were just over 3 m wide, so all vehicles except motor bikes would have to stop with their tail or front end projecting out into the kerbside lane of the main road whilst opening or closing the gates.

20 If the gates were left open, the front setbacks of the garages had 2 m for Unit 1 and 3 m for Unit 2. It meant a car had to be parked blocking the footpath whilst the garage doors were opened or closed.

21 The applicant put that the council engineers had not objected to that. Reading the file, however, it appeared one of the council engineers had objected, but had discontinued the objection when it was realised the previous consent for the dual occupancy included one similar driveway on the east side of the subject site. The approved driveway was to a carport that was to be built as alterations to the existing cottage.

22 In regard to issue 6, the character and streetscape of the locality and the fit of the proposal within it, the applicant’s position was, in summary, the houses between Watkins Street and Union Street, along the Glebe Road frontage, had not been identified by council as being in a conservation zone, or being a group of older houses with heritage value, or there being any individual house nominated as a heritage item.

23 In urban design terms, the applicant’s evidence was the Robinson Commercial Building on the corner of Union and Glebe Road, forms a “book end”, along with the shop on the corner of Watkins and Glebe Road, within which the row of houses are contained. The subject site, being next to the “book end” of the shop, can add to the “book end” urban design description without diminishing the remaining houses in the row. By becoming part of the “book end” the applicant’s evidence was that it is acceptable for the eastern side of the proposal, Unit 1, to have a roof as high as the shop and to have a front setback the same as the kitchen cottage attached to the shop.

24 The western Unit 2 has a hipped roof and steps back at the first floor level 1.5 m from the west boundary to give a transition down to the scale of the single storey houses in the row. Also its front setback is the same as the front verandah of No. 57 Glebe Road.

25 Being part of the “book end” of the shop, the proposal also reinforces the small civic square and war memorial opposite the shop. The square has one and two storey commercial buildings on all sides. The proposal helps to increase a sense of place for the square, the applicant said.

26 The respondent’s and the objectors’ position, supported by the heritage architect Mr Brady, in conjunction with issue 6, is, in summary, that the primary visual role of the subject site and the existing cottage is its relationship to the row of similar houses between the “book ends” of the shop at Watkins Street and the Robinson Real Estate building at Union Street. The kitchen cottage attached to the shop commences the row of houses at the east, and No. 75 adjoining the Robinson Building is the western end. A recent application to demolish the house at No. 75 and extend the Robinson Building into No. 75 was refused.

27 The zoning on the north side of Glebe Road is 3B District Centre, and that recognises its commercial and shopping function. The south side of Glebe Road where the proposal is located is zoned 2B, Residential Urban Core. So the difference in zoning recognises a distinct change in the character from one side of Glebe Road to the other. The road is the boundary.

28 Most of the owners of the houses have undertaken renovation and restoration that retains and enhances their intact one storey weatherboard with hipped and gabled roof character. It represents their construction pre 1915.

29 The only previous dual occupancy developments in the row had placed the new dwellings at the rear of the old ones, so the streetscape remained intact. Even the dual occupancy existing at the rear of the No. 55 had that to its credit.

30 The subject cottage at No. 55, although unrenovated, retains and is part of that streetscape, including the mature frangipani trees in the front yard that are typical of other houses in the row. To lose the house and its setting from the row will adversely affect the streetscape and commence a process that over time will see the loss of the streetscape and perhaps the whole row of houses.

31 The reasons the streetscape is valuable also relates to heritage matters the respondent said. In this aspect:

(1) The land on which the row of houses stand was the first residential subdivision by the pioneering A A Company at The Junction.

(2) The consistency, aesthetic form, scale, detail, alignment and remnant external finishes of the row of houses are intact and demonstrate the early Federation cottage form of detached working persons’ houses. Each house in the row had contributory significance for the whole row.

(3) It was put that the row was architecturally rare, however in the face of evidence of similar rows of timber cottages near The Junction of about the same period, this was not sustainable.
(4) The records show it was the first such subdivision by the A A Company at The Junction. Mr Brady made the point that although the two storey dual occupancy at the rear of No. 55 had disturbed the intact nature of this original subdivision, it did not disturb it for the casual observer in the street. The existing cottage occupied the original frontage. The proposal by contrast would break this frontage up into two narrow frontages, breaking the regular pattern of lot widths along the row of houses.

(5) Added to this, research just prior to the hearing had revealed the subject existing cottage at No. 55 was shown by records to be first owned by R J Kilgour, a past elected mayor of the area, and whose son was the first to enlist from the locality in 1915 for World War 1. The son was killed in action and his name is inscribed on the war memorial opposite the house in the civic square. So there is a strong association with a prominent person of the locality and World War 1. There was cultural heritage value in the existing house itself.

32 In regard to issue 2, a summary of Mr Brady’s evidence was:

(a) The typical cottage in the row of houses is detached in style with a narrow setback one side and a driveway suitable for a horse and dray on the other.

(b) The proposal goes right up to the boundary both sides. On the east it is a wall two storeys high, plus the height of the gable, over 7 m high. This will be seen clearly from Glebe Road and the civic square at the war memorial. The west side of the proposal goes to the boundary up to the ceiling of the first floor then steps back 1.5 m with a hipped roof. The ground floor and cantilevered balcony will be visually stronger than the side setback at the first floor in establishing visual bulk in the streetscape.

(c) Mr Brady notes that the cottage of the shop which now acts as a kitchen, is the commencement of the smaller scale row of houses, and therefore the proposal is not part of the “book end” urban design concept. Therefore, the proposal by going boundary to boundary both sides, and exceeding the building envelope of the Lower Hunter Urban Housing Development Control Plan does not fit easily into the established streetscape.

33 The respondent noted that the recommended floor space ratio was considerably exceeded by the proposal, and although there was no statutory maximum floor space ratio, the lack of fit into other controls indicated that the floor space ratio of the proposal on this site was excessive.

34 The front setback configuration was also criticised on the basis that having the garage walls of Units 1 and 2 set back to match the houses at Nos. 53 and 57 respectively, was largely negated by the large cantilevered balconies that came to within 1.2 m and 1.6 m of the front boundary. A later draft condition increased this setback but still allowed the balconies to project a little in front of the garage walls.

35 Mr Grant said that Mr Brady’s use of the Burra Charter to assess heritage significance was not a statutory test as the Charter was not recognised under the Newcastle Local Environmental Plan 2003. So the Charter could only be used as a guide.

36 Given the extensive council studies of the locality on heritage and the many heritage items listed in the statutes, Mr Grant said that it was notable that the subject site was not included, nor the row of houses, nor the streetscape between Watkins and Union Street in Glebe Road. As a result Mr Grant could not give the existing house and the row of houses and the streetscape the same importance attributed by Mr Brady.

37 The 2B zone allowed up to three storey flats he said, and Mr Easton’s willingness to modify the two storey proposal to achieve a reasonable fit meant a consent should be possible. At no time had discussions with council staff or even Mr Brady, until just before this hearing, indicated that keeping of a single storey design, let alone preservation of the existing house at No. 55, was a requirement.

38 Contemporary design responses to existing streetscapes could achieve acceptable results. Mr Grant said there were changes to the proposal that would give it a better fit, such as pushing the first floor front balconies back, eliminating the cathedral ceiling of Unit 1’s balcony roof, and creating a gable with eaves, similar to houses in the row, and in filling the gable with weatherboards. The balustrades of the decks could be lightened in appearance to look less solid.

39 The shadows of concern to the owner of No. 57 Glebe Road were shown to be well within the council’s controls. The controls sought that shadows not reduce sun to less than two hours per day on a neighbour mid winter. The shadow diagrams reveal the proposal would shade No. 57’s driveway until about 11am mid winter, but the rest of the day no impact at all. So there was still five hours of sun for No. 57. The existing two storey dual occupancy at the back of the subject lot also retained adequate solar access under the same control.

40 In the end the Court turned to the evidence of Mr Mahler, whose evidence was not cross-examined. In regard to the issues 2 and 6 and to the extent that it also involved remaining issue 1.2, he said in summary that they are related.

41 The existing dwelling erected on the subject site is not listed as an item of heritage Mr Mahler noted, and the site is not located within a heritage conservation area. Notwithstanding it is still necessary to make an assessment under s 79C of the Act and have regard to cl 4.9 heritage considerations under the Lower Hunter Urban Housing Development Control Plan.

42 After reading Mr Brady’s initial report to council, Mr Mahler had requested that Mr Brady determine any heritage significance of the existing dwelling on the subject site. Having considered Mr Brady’s further advice, and having regard to the heritage significance of the existing building and the group of dwellings in which it is situated, Mr Mahler considered that the proposed development involving the removal of the existing dwelling is not appropriate, having regard to cl 4.9 of the Lower Hunter Urban Housing Development Control Plan, which has the objective of,

“to ensure preservation of the distinctive character of an area which is identified for heritage significance, or is valued by the community.”

43 Performance Criteria 1 relative to this objective in the Development Control Plan says,

“The retention, preservation and recycling of existing buildings which make a positive contribution to the heritage character of the locality.”

44 Mr Mahler’s view is that this clause relating to heritage is not premised by whether an existing building is a listed heritage item, or within a listed heritage conservation area, under the Local Environmental Plan.

45 Mr Mahler said the proposal was not consistent with Aim 1 of the Newcastle Local Environmental Plan,

“To respect, protect and compliment the natural and cultural heritage, the identity and image and the sense of place of the city of Newcastle.
Objectives,

(a) respect and build upon positive aspects of local character and amenity, and

(b) contribute positively to the public domain, namely its urban streetscapes and open spaces and

(f) protect places and structures which have the potential to have heritage significance, but have not been identified as heritage items.”

46 Mr Mahler also said the proposal was inconsistent with the following objective of the 2B Urban Core Zone under the Newcastle LEP 2003 having regard to the established heritage value,

“(a) to provide for a diversity of housing types that respect the amenity, heritage and character of surrounding development, and the quality of the environment.”

47 The existing character of the area relevant to the proposed development is on the south side of Glebe Road between Union Street and Watkins Street. This character is defined by the predominance of residential development along the south side of Glebe Road. The only two commercial developments are prohibited within the 2B zone, and presumably operate on the basis of existing use right provisions under the Act. These commercial buildings do “book end” or frame the residential development, Mr Mahler said.

48 The north side of Glebe Road is distinctly different character, defined by commercial land use and two storey commercial buildings, located on front property boundaries. This reflects the zoning as 3B District Centre Zone under the Newcastle LEP 2003.

49 In more specific terms Mr Mahler said the character of the south side is defined by single storey detached weatherboard dwellings set close to Glebe Road, set off side boundaries, and in particular it is noted that none have attached or built in garage structures with their associated garage doors facing the street. Access for the vehicles is provided at the side of the dwelling and provision for parking occurs at the side or at the rear. The lack of obvious garaging is considered a distinctive feature of the row of houses, and is evidence of the age of the dwellings. The uniformity of the dwellings in terms of their age, height, setbacks and materials contributes to defining the character.

50 Mr Mahler’s opinion of the existing character of the area is consistent with the existing setting adopted by Mr Brady. The heritage significance of the grouping as assessed by Mr Brady also contributes to the character. Some of the dwellings have been restored and so make a more significant contribution, whilst others require work including the existing dwelling on the subject site. Mr Mahler considered the development proposal is out of character with that as defined above for the following reasons.

(a) The proposed development is two storey construction. Whilst a one storey variation may usually be regarded as appropriate, in the circumstances it is considered inappropriate given the heritage significance and uniformity of the single storey structures.

(b) The proposed development is of materials inconsistent with those used in the nearby dwellings. This is considered to be of particular importance, having regard to the identified heritage significance of these single storey structures.

(c) The proposed development is constructed to the side boundaries other than for the upper level setback on the western side.

(d) The proposed development provides for large upper level decks, fronting Glebe Road, whose elements are foreign to the existing streetscape. The impact of these is exacerbated by the balustrades, their protrusion beyond the lower level setbacks of the proposed development and that they extend close to the side boundaries. Whilst a less solid balustrade than originally proposed would reduce visual impacts in the street, compared with solid balustrade, the overall structure would still remain prominent. The use of less solid balustrade would provide a lesser level of privacy to residents and will also not screen deck furniture and the like from the street.
(e) The proposed development is for two attached dwellings, rather than detached dwellings. The overall mass of the building is not consistent with that of the existing nearby dwellings fronting Glebe Road.
(f) The proposed development incorporates two garages with their associated doors prominently located within the Glebe Road streetscape. Mr Mahler noted the architect’s advice that the front fence would be provided as a picket fence, and that the driveways could be further narrowed. However, even with those changes the proposed development is considered by Mr Mahler to not comply with the objectives and performance criteria of cl 3.4, streetscape and front setbacks, under the Lower Hunter Urban Housing Development Control Plan . Specifically the following,
“Objective 1, in developed areas to ensure that new development enhances and makes a positive contribution to the character of existing streetscapes.
Performance criteria 1, the scale and appearance of new development is compatible and sympathetic to existing development in the locality, particularly on the perimeter of the development site, and where the locality or development site has some heritage significance or distinctive character.”

51 The proposal is also considered to not comply with the objectives or performance criteria 4.2 External Appearance under the Lower Hunter Urban Housing DCP, specifically,

“Objective 3, the provision of good design which provides continuity of character between the local building forms and new development by using a selection and/or combination of characteristics, elements and massing.

Performance criteria 1, demonstrated compliance with consideration of the existing scale or character and massing of development in the immediate area.”

52 The proposal is also considered to not comply with cl 4.9 heritage considerations as follows,

“Objective 1, to ensure preservation of the distinctive character of an area, which is identified for heritage significance or is valued by the community.

Performance criteria 2, good contextual design which reinforces the aesthetic qualities of the heritage streetscape. The dominant design features which contribute to the historic character of a streetscape should be reflected in the proposed development.”

53 Having regard to the above it is considered that the proposed development is not consistent with the following aims and objectives of the LEP, Mr Mahler said.

“Aim 1, to respect, protect and compliment the natural and cultural heritage, the identity and image, and the sense of place of the city of Newcastle.

Objectives

(a) respect and build upon positive aspects of local character and amenity and

(b) contribute positively to the public domain, namely its urban streetscape and open spaces, and
(f) protect places and structures which have the potential to have heritage significance, but have not been identified as heritage items.”

54 Having regard to the above, the proposed development is considered by Mr Mahler to be inconsistent with the following objective of the 2B Urban Core Zone, under the Newcastle Local Environmental Plan 2003,

“B, to provide for a diversity of housing types that respect the amenity, heritage and character of surrounding development, and the quality of the environment.”

55 Mr Mahler also said considering that the original lot layout comprised the subject site and the adjoining rear site as one lot, it may be argued that subdivision of the original lot into two and the erection of a house on the rear lot, has already contributed to increasing the density within this area that is nominated for higher density housing, when balanced against the character and heritage considerations.

56 In conclusion Mr Mahler considered that the proposed development is out of character with the relevant area, which together with the existing house has been identified in evidence as having historical significance. In particular the height, materials, garaging, lack of setbacks and upper level terraces of the proposed development are inconsistent with the established streetscape.

57 Having regard to the heritage significance of the existing dwelling and its overall contribution to the significance of the group of dwellings on the south side of Glebe Road, Mr Mahler was of the view that the proposed development does not warrant demolition of the existing dwelling.

58 Mr Mahler had a further opinion that even if the dwelling were to be demolished he was not convinced that it is possible to achieve two dwellings on the subject site, having regard to the size of the site, which is very small, and the likely amendments required to ensure an appropriate development outcome namely one that is in keeping with the character of the area.

59 In considering Mr Mahler’s evidence it is unfortunate that after considerable negotiation with the council that some of the matters had not arisen until quite late, and not long before this hearing. However, the Court must deal with the appeal on the basis of the evidence it has received and the applicable statutes and controls at the time of hearing.

60 Having regard to the respondent’s evidence including the practical matters raised by the residents, the Court gives it determinative weight. There is real evidence that there is heritage significance in the streetscape, and cultural significance in the early origins of the subdivision, and the row of houses, and there is particular reference to the cultural significance of the existing house on No. 55 Glebe Road. The council is in the process of examining that.

61 The Court does not believe it is appropriate to approve development that would forestall that examination, and in any case the proposal is shown to be not sympathetic to its relevant context in the streetscape regardless of heritage matters.

62 Therefore the orders of the Court are:

1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 1, 2, 4, 5, 6, 7, 8, 9 and extract from Exhibit 3, the Marler Report and Exhibits A and D.

______________________
K G Hoffman
Commissioner of the Court
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