Paul Jones and Associates Pty Limited v Woollahra Municipal Council
[2004] NSWLEC 2
•01/06/2004
Land and Environment Court
of New South Wales
CITATION: Paul Jones & Associates Pty Limited v Woollahra Municipal Council [2004] NSWLEC 2 revised - 16/01/2004 PARTIES: APPLICANT
RESPONDENT
Paul Jones & Associates Pty Limited
Woollahra Municipal Council
.FILE NUMBER(S): 10126 of 2003 CORAM: Watts C KEY ISSUES: Development Application :-
Heritage impacts
.LEGISLATION CITED: Woollahra Local Environmental Plan 1995, (WLEP)
Woollahra Development Control Plan for off Street Parking Provision and Servicing Facilities, (DCPP)
Draft Woollahra Local Environmental Plan 1995 (Amendment No 46), (DLEP Am46)
Draft Woollahra Local Environmental Plan 1995 (Amendment No 51) - 489 New South Head Road, Double Bay, (DLEP Am51)
Development Control Plan for Access
Stormwater Drainage Code
Woollahra Residential Development Control Plan 2003, (WRDCP2003)CASES CITED: DATES OF HEARING: 15 and 16 December 2003 DATE OF JUDGMENT: 01/06/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr P Tomasetti, barrister
Instructed by
Mr J Doyle, solicitor
Cowley Hearne
Mr M J Connell
Michell Sillar
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10126 of 2003
6 January 2003Watts C
- Applicant
- Respondent
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Woollahra Council (the council) of an integrated development application to retain and renovate the existing building, ‘Knowle’, and to use it as two dwellings and to erect a three-level residential flat building comprising four (4) new apartments, over street-level car parking at Lot B, DP 312738, being No 489 New South Head Road, Double Bay.
2 I visited the land in company with the parties on the first day of the proceedings. On-site two residents gave evidence. On the site inspection I also visited the Woollahra Council Chambers to view the terrace at ground floor level over offices below, said by Mr Kovacs, the council’s heritage officer, to be a good example of terracing a new building below the ground floor of an heritage building.
3 I have concluded that the present application should fail as the third level of the new residential flat building would block views of the northern corner verandah of the proposed heritage item and would reduce unreasonably its curtilage.
The land
4 The land is situated on the south eastern side of New South Head Road near the intersection of New South Head and Bellevue Roads. The land is steep near the road and rises between 8.7m and 9.5m over a distance of about 13.0m to a level platform on which is erected the existing building ‘Knowle’, with its ground floor at around 17.42m AHD. The front setback of ‘Knowle’ varies from 19.5m – 23m from New South Head Road.
5 The land, which is largely trapezoidal with the rear boundary at a 45-degree skew, has an area of 956m2 with a frontage of 21m to New South Head Road and an average depth of around 45m. The council has identified ‘Knowle’ as a potential heritage item. It is reminiscent of 1920's English Gothic revival architecture, however, is not presently listed. It was occupied, until recently, as a consular residence.
6 The area is predominantly residential with dwelling houses, residential flat buildings, a mixed-use development and commercial buildings all in close proximity and is also close to the Double Bay retail centre.
7 To the south of the land is a seventeen (17) storey residential flat building known as ‘Colebrook’ erected in the early 1960s. Adjacent to ‘Colebrook’ and further to the south is the Cooper's Corner mixed-use development at the intersection with Bellevue and New South Head Roads.
8 To the north of the land is No 493 New South Head Road a single-storey and two-storey commercial/residential building used in part by a physiotherapist. To the east of the land is a dwelling at No 8 Fairfax Road, Bellevue Hill that sits considerably higher than the subject land.
9 To the west of the land, on the opposite side of New South Head Road are residential flat buildings ranging in height from two-storeys to four-storeys, with the lower levels often in commercial use.
10 The land is within the vicinity of the following items on the council's heritage register:
- No 470 New South Head Road, Rose Bay;
- No 6 Fairfax Road, New South Head Road, Bellevue Hill;
- No 2 Fairfax Road, Bellevue Hill;
- No 8 Fairfax Road, Bellevue Hill;
- No 10 Fairfax Road, Bellevue Hill; and
- No 12 Fairfax Road, Bellevue Hill;
11 However, the heritage experts in a joint statement agreed that each of the above were sufficiently removed for these not to constitute ‘items in the vicinity’ and this issue was not pressed.
Relevant planning controls
Woollahra Local Environmental Plan 1995, (WLEP)
12 Under the provisions of the WLEP, gazetted 17 August 2001, the land is zoned Residential 2(b), and the proposal is permissible with consent. It is located within the Bellevue Hill North Precinct and the Harbour Foreshore Scenic Protection Area, (HFSPA).
13 Clause 1(g) of the WLEP has the objective “…to conserve the environmental heritage of the area of Woollahra”. General objectives for residential development, landscape and heritage conservation are set out in Clause 2 of the same planning instrument.
14 The heritage conservation objectives, set out in cl 2(2) of the WLEP are:
(i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement,
(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas,
(iii) To encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works, which contribute to the character of heritage conservation areas;
(iv) ...
(vi) To require, when considered necessary, the consideration of a statement of heritage significance or a conservation plan before consent is granted for development relating to a heritage item or development within a heritage conservation area.(v) To provide for the detailed control of development associated with or in proximity to heritage items and heritage conservation areas,
15 Clause 8(5) of the WLEP provides:
The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development.
16 Residential flat buildings are permissible in the 2(b) zone, which has the objectives, relevantly:
(a) To provide for areas of medium and high density residential development in appropriate locations;
(b) To encourage a diversity of dwelling types and tenure;
(c) ...
(e) To protect the environmental attributes of coastal and foreshore lands.(d)
17 Clause 10B(2) of the WLEP sets out minimum requirements for site width (21m) and site area (930m2). The proposal complies with these requirements.
18 Clauses 11 of the WLEP sets out the relevant floor space ratio, (FSR) development standard. The proposal does not comply with the FSR standard (0.75:1 permitted, 0.94:1 proposed), and a SEPP 1 objection has been submitted in respect of the breach of FSR.
19 Clause 11AA of the WLEP also includes a note to the effect “…the maximum floorspace ratio is not ‘as of right’. To achieve the maximum permissible floorspace ratio, development must satisfy other relevant controls applicable to the land concerned.”
20 Clause 12AA of the WLEP sets out objectives for the building height controls and Clause 12 of the WLEP provides a height limit of 15m. The proposal complies in this regard.
21 Clause 18 of the WLEP requires consent for excavation and requires the council to take into account matters relating to the impact of the excavation on:
(a) Amenity (noise, vibration, dust or other similar circumstances related to the excavation process);
(b) `Public safety';
(c) `Vehicle and pedestrian movements';
(e) `Natural landforms and vegetation'; and `Natural water runoff patterns'.(d) The heritage significance of any heritage item that may be affected by the proposed excavation and its setting;
22 Clause 19 of the WLEP sets out requirements for development in the HFSPA and requires the council not to grant consent to an application for development in that area, unless it has made an assessment of:
(a) The visual impact when viewed from Sydney Harbour... and
(b) The impact, of the proposed development on the natural landform and topography.
23 In Part 4 of the WLEP, are the specific heritage provisions. Clause 27 of that part provides that:
The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity.
Draft Woollahra Local Environmental Plan 1995 (Amendment No 46), (DLEPAm46)
24 The council on 22 September 2003 resolved to refer DLEPAm46 to the Minister under s 68 of the Act and within that instrument the floor space ratio, (FSR) for the land would be increased from 0.75:1 to 1:1 and would exclude from calculation the area of any heritage item. The parties agreed that this instrument was certain and imminent.
Draft Woollahra Local Environmental Plan 1995 (Amendment No 51) - 489 New South Head Road, Double Bay, (DLEPAm51)
25 DLEPAm51 was referred to the Minister under s 68 of the Act on 3 November 2003, proposing that the building ‘Knowle’, a terrace and the stone front wall are to be included in the heritage inventory. A separate stone garage located at street level, accessed off New South Head Road, alongside the stone retaining wall, referred to in the heritage inventory is apparently not included. The parties agree that this instrument was certain and imminent.
Woollahra Residential Development Control Plan 1999, (RDCP)
26 The RDCP adopted in 1999, provides more detailed controls for the development of land within the residential zones, than are found in the WLEP.
27 The RDCP contains specific provisions for various precincts, including Bellevue Hill North, wherein the subject land is located. General controls are provided for streetscape, building size and location, open space, landscaping and views.
5.10 Car Parking and Driveways
5.10.1 Objectives
1 To limit site excavation by ensuring underground parking areas are restricted to the permissible building footprint for the site.
2 To provide convenient and safe car parking and access while encouraging alternative modes of transport, particularly walking and cycling.
4 To limit the adverse temperature and stormwater run-off impacts of impervious surfaces.3 To ensure that on-site car parking and driveways do not dominate or detract from the appearance of the development and the local streetscape.
Development Control Plan for Access
Stormwater Drainage Code
Woollahra Residential Development Control Plan 2003, (WRDCP2003)
28 The council adopted the WRDCP2003 on 22 September 2003; however, this will not be in force until the gazettal of the DLEPAm46. Council officers currently assess development applications under the RDCP.
The proposal and its history
29 Integrated development application No 990 of 2002 was lodged with the respondent council on 28 November 2002 to retain and renovate the existing building, ‘Knowle’, and to erect a three-level residential flat building, above street-level car parking at the land.
30 The applicant proposes to restore the existing dwelling by:
- Converting it into 2 units, divided between the existing upper and lower floor levels. Access to the first floor would be via a staircase located near the entry/porch;
- Maintaining the main, internal areas of heritage significance and restoring them to original character and detail;
- Adapting less significant areas of the existing dwelling to wet areas;
- Restoring the original external features of the building including the front porch and the northern corner two-storey verandah;
- Adding to the rear; and
- Retaining the existing landscaped courtyard at the rear of the dwelling to be used as private open space.
31 It is proposed to erect a new four-level building with concrete floors and roof slabs and double brick cavity walls comprising:
- Basement level with eleven (11) secure car parking spaces, vehicle and pedestrian entries from New South Head Road and lift access to the units above;
- Level 1 with two (2) x one bedroom units with home/office facilities and terraces off the main living areas;
- Level 2 with two (2) x two bedroom units with 2 ensuites and terraces off the lounge; and
- Level 3 with the main bedrooms and ensuite for Units 3 and 4, lift access for ‘Knowle, and a garden terrace.
32 The applicant calculated the FSR, under the WLEP, of the proposal to be 1.03:1, [Note: Exhibit C p 9] and Ms Laidlaw for the council calculated it as 0.94:1, [Note: Exhibit 4 p 10]. By either method, as the proposal would exceed the FSR under the WLEP, a SEPP1 objection is required. An amended SEPP1 objection came to the Court as Exhibit Q.
33 It is also noted that under the DWLEP2003, the proposed FSR would be 1:1 excluding the gross floor area of ‘Knowle’. Thus the proposal would more than comply with the FSR control under the new planning regime.
34 The application is integrated development for reason of it fronting an arterial road and requiring access to and from New South Head Road and the concurrence of the RTA is required. The RTA has granted concurrence, under s 138(2) of the Roads Act subject to conditions, including:
1. Any fencing and/or other obstructions do not affect sight distances from within the property to pedestrians/cyclists in the footway area and vehicles on New South Head Road. Council should ensure that all current Australian Standards (AS2890.1 - 1993) for sight distances for vehicles exiting onto, prior to entering the roadway, should be attainable prior to entering the roadway.
2. The design and construction of the new gutter crowing in New South Head Road shall be in accordance with RTA requirements. Details of these requirements should be obtained…
4. All works associated with the development will be at no cost to the RTA.3. Any redundant driveways along New South Head Road frontage to the site are to be removed…
35 The RTA suggested in the same letter that:
- Appropriate noise protection be included to address possible traffic noise;
- Design of the car parking area to conform with AS 2890.1-1993;
- Stormwater run-off from the site onto New South Head Road be addressed.
Notification
36 The application was notified to nearby owners and occupants and the council’s reporting officer noted five submissions were made to the council, [Note: Exhibit 2 pp63-4]. Resident concerns included:
- Pathway to east of site incorrectly shown as a public walkway when this is private land attached to No 8 Fairfax Road, Bellevue Hill;
- Safety of traffic entering and leaving the site and impact on existing traffic in the area;
- Non-compliance with DCP with regard to off-street car parking;
- Inadequate detailing of excavation in terms of providing section how existing residence and adjoining properties will be stabilised;
- No geo-technical report submitted;
- Non-compliance with floor space ratio control;
- Loss of amenity for adjoining property at No 177 Bellevue Road, Bellevue Hill in terms of outlook, noise and visual privacy;
- Impact on heritage significance of the existing house due to proposed alterations and additions;
- Loss of valuable trees from the subject site;
- Concern regarding possible damage to adjoining properties during construction;
- Impact on visibility of existing house by proposed residential flat building; and
- Objection to destruction of existing terrace garden to front of dwelling.
37 The council's heritage officer, Mr Kovacs, considered ‘Knowle’ to be of such significance as to be considered a potential heritage item, [Note: Exhibit 2 p 72].
The demolition report by Noel Bell Ridley Smith & Partners assesses the significance of the place according to NSW Heritage Office guidelines and I support the findings of the assessment of significance.
The house on the site has historic, aesthetic and social values to the Double Bay area. It has historic significance through i is ability to demonstrate mid 20th century living and settlement patterns within the locality and it is associated with a historically significant personality; publisher R E Denison. The house executed in the Old English Style is the design of prominent Sydney architects, E A Scott & Green.
The house is a contributory element in the streetscape and it forms part of a group of prominent houses of similar potential cultural value.The house is a representative example of Old English Gothic and its fabric is intact to a high degree. Its representativeness and integrity makes it rare in the cultural context of Woollahra.
38 He assessed the heritage impact of the proposal in terms of, [Note: Exhibit 2 pp 72-3]. :
The proposed development was the subject of pre-DA discussions where substantially the same proposal was presented. My comments then were as follows:
‘The retention and restoration of the house represents potentially positive heritage impact provided the work is undertaken involving a suitably qualified heritage professional who is engaged to provide consultative advice at all stages of the project.
The primacy of the house on the site is compromised by the third level additions of the new development in the context of New South Head Road and the site, as these additions will obscure the house and relegate it into the background.’The proposed development in the forecourt of the house raises potential problems. The demolition of the landscaped terraces represents a negative conservation impact, but the loss to the cultural heritage of the local area can be mitigated by archival recording of the existing landscaping and employing an external character to the new development which recalls the terraced sandstone walled podium.
The same comments are still relevant, as the third level addition is intrusive to the setting of the potential heritage item.
39 He concluded that, [Note: Exhibit 2 p 73]:
No objections are raised against the development on conservation grounds provided the following recommendations are incorporated into conditions of consent.
40 He recommended, [Note: Exhibit 2 p 72]:
A suitably qualified heritage conservation professional should be engaged to provide consultative advice during the whole of the project involving the restoration of the existing house in order to safeguard that the significance of the item is retained.
The external treatment of the new development facing New South Head Road should employ detailing such as deeply recessed glazing, materials such as sandstone and natural finishes as far as practicable finishes which reflect its garden setting. The proposals appear to reflect this objective, but more descriptive detail relating to finishes and materials would need to be included in the DA submission.
In the light of the cultural significance of the place, the house on the site should be listed as a heritage item in Schedule 3 of the Woollahra LEP 1995 under an LEP Amendment.The third level of the new development comprising of four bedrooms needs to be deleted and the third level should be converted to an open terrace to function as a platform for the heritage item in order to provide it with an appropriate setting.
The council’s decision
41 When the appeal was filed, the council had not determined the application, however, by notice dated 14 April 2003, the council refused the application for reasons reflected in the issues.
The hearing
42 The appeal was filed on 6 February 2003 on the basis of a deemed refusal.
43 On behalf of the council, the Court received written statements of evidence from, Ms M D Laidlaw, consultant town planner, [Note: Exhibit 4 and reply Exhibit 5] and Mr Z Kovacs, heritage officer of the council, [Note Exhibit 7].
44 On behalf of the council evidence was given on-site by:
- Mr R E Mews, resident of No 8 Fairfax Road, Bellevue Hill advised by Ms J Stening; and
- Ms D Goddard for the ‘Colebrook’ Owners’ Corporation, Strata Plan No 27 at No 177 Bellevue Road.
45 On behalf of the applicant oral evidence was given by:
- Mr S L Davies, consultant heritage officer, [Note: Exhibit F; Statement of evidence];
- Mr R M Staas, consultant heritage officer, [Note: Exhibit E; Statement of evidence.
46 Mr H W Aram, OAM, owner of ‘Knowle’ gave evidence in support of his application.
47 Mr N Ingham, consultant town planner, whose statement of evidence was Exhibit C and reply Exhibit D was not required for cross-examination. The joint statement on planning by Mr Ingham and Ms Laidlaw became Exhibit 6.
48 The heritage experts’ joint statement became Exhibit 13 in the proceedings.
The issues
49 On 28 October 2003 the council filed a statement of issues.
Heritage and Conservation
Whether, having regard to issues 1-3 the proposed development complies with the aims and objectives set out in Clause 2(2)(g)(i) and Clause 2(2)(g)(ii) and the related heritage provisions under Part 4 of the Woollahra Local Environmental Plan 1995.
Scale, Density & Built Form
2. Whether the proposal is acceptable having regard to its impact on the setting and curtilage of the proposed heritage item and of other existing and proposed heritage items in the vicinity being:1. Whether the proposed development should be approved, having regard to the recognised heritage significance of the existing building and Council's resolution to have the building listed as a heritage item.
Potential Heritage Items:Heritage Items:
(a) 470 New South Head Road, Rose Bay known as "Carinya".
(b) 6 Fairfax Road, Bellevue Hill known as "Tudor Lodge".
(c) 2 Fairfax Road, Bellevue Hill.
(d) 8 Fairfax Road, Bellevue Hill.
(e) 10 Fairfax Road, Bellevue Hill.
(f) 12 Fairfax Road, Bellevue Hill.3. Given the proposed listing of the dwelling as a heritage item, whether there is adequate documentation in relation to the nature and extent of proposed alterations to the existing building.
Landscaping
4. Whether the proposed development should be approved, having regard to its non-compliance with the floor space ratio control in Clause 11 of the Woollahra Local Environmental Plan 1995. In this regard, the submitted floor space ratio by the Applicant is 1.03:1. The control specifies a maximum of 0.75:1.
5. Whether the SEPP 1 objection to the non-compliance with the floor space control development standard should be allowed.
7. Whether the development is consistent with the Desired Future Character Objectives for the Bellevue Hill Precinct under Woollahra Residential Development Control Plan1999, Section 4.6.1, objectives 01, 02 and 03.6. Whether the proposed development should be approved, having regard to its non-compliance with the building footprint control and setback controls specified under Section 5.2 of the Woollahra Residential Development Control Plan 1999.
8. Whether the proposed development should be approved, having regard to its non-compliance with the minimum required deep soil landscaping provision specified in Section 5.3 of the Woollahra Residential Development Control Plan 1999.
9. Whether the proposed landscape treatment is appropriate.
11. Whether the proposed basement floor level is appropriate, in the light of the recommendations of the Applicant's Flooding and Overland Flow report, Demlakian, 11 November 2002.Excavation
10. Whether the amount of excavation proposed is excessive, having regard to the provisions of Clause 18 of LEP 1995.
Traffic and Parking
12. Whether the proposed development should be approved, having regard to its non-compliance with Australian Standard 2890.1 - "Off-Street Car Parking" with respect to car space entrance width, car space width and the location of structural columns.
13. Whether the proposed development should be approved, having regard to its non-compliance with the provisions of Part 5.10 of the Woollahra Residential Development Control Plan 1999. The access and car parking arrangements are unsafe and unsatisfactory.
14. Whether the proposed development should be approved, having regard to its non-compliance with Performance Criterion P7 and P8 contained in Section 5.10.3 of the Woollahra Residential Development Control Plan 1999.
16. Matters raised by objectors.15. Whether the proposal is in the public interest.
50 The salient issue was whether the proposal would block views to and from the proposed heritage item, ‘Knowle’, and whether it would adversely impact on its setting and curtilage. This is a refinement of the first part of Issue 2 “Whether the proposal is acceptable having regard to its impact on the setting and curtilage of the proposed heritage item…”
The evidence and findings
Whether the proposal would block of views to and from the proposed heritage item, ‘Knowle’, and whether it would adversely impact on its setting and curtilage.
51 The parties raised no objection to the adaptive reuse of the proposed heritage item ‘Knowle’. It is to be converted into a duplex of two dwellings. The only objection was directed at the new residential flat building facing onto New South Head Road, substantially below the ground level of ‘Knowle’. The parties also agreed that the proposal largely complies with the council’s planning requirements for the land with the exception of the present FSR standard.
52 Prior to the application coming to the Court, the third level of new residential flat building had been reduced in extent to about half and this resulted in views to and from ‘Knowle’, to the south west. Thus views to the old building would be possible from the corner of Bellevue Hill and New South Head Roads and in the opposite direction.
53 Part of a third level of the proposed new residential flat building would be retained near the northern verandah corner of the old building. The heritage consultants Messrs Staas and Kovacs conferred and agreed that the sole remaining heritage issue was whether the location of that third level of accommodation would be acceptable given the resulting view impact to and from the proposed heritage item, and on its setting. [Note: Exhibit 13: Heritage experts’ joint report dated 10 December 2003]. Mr Davies, who was not involved in those joint discussions, orally confirmed that this was the remaining issue.
54 Mr Kovacs conceded, on the site inspection, that if the applicant were to remove that top section of the proposed new residential flat building, there would be no contest between the parties.
55 There was no dispute between the parties that the existing building on the land has some heritage significance and the statement of heritage significance of ‘Knowle’, prepared by Mr Staas, of Noel, Bell, Ridley Smith & Partners Architects Pty Limited recognised the local heritage significance of the house on the land and the front boundary wall, [Note: Exhibit E p 8]. Also the council identified the house as a potential heritage item, [Note: Exhibit C p 7]
Knowle at No 489 New South Head Road Double Bay is a good and relatively intact surviving example of the type of architect designed residences built by persons of means in the inter-war period in the Municipality of Woollahra.
Designed for prominent Newspaper and Broadcasting Executive, Reginald Ernst Denison by the architects E A Scott & Green, the house demonstrates a distinctive architectural style closely related to the Inter-War Old English style and utilizes distinctive and elaborate brick detailing to the Gothic arched verandah arcading on the main facades.
The building has heritage significance for historic associations and aesthetic values at a Local Representative level.The house is a good surviving example of social and architectural values of the period in its planning and in its expression and is a good representative example of that style and period.
56 Mr Staas commended to the Court, for favourable consideration, the revised application, as one that balances the conflicting requirements of the council and the applicant… [Note: Exhibit E p 15]. Mr Ingham stated that the conclusion reached by Mr Staas was “…that an appropriate compromise has been reached to improve the relationship between the development and the proposed heritage item known as ‘Knowle’”, [Note: Exhibit C p 8]. He suggested that this ‘compromise’ would allow for,
- retention of ‘Knowle’;
- conservation of parts of it especially of the verandah to the north west; and
- increased visibility of the proposed heritage item from New South Head Road due to removal of vegetation.
57 In oral evidence, when considering this ‘compromise’, Mr Staas, placed some weight, on the potential of the land for development, under the existing and proposed planning instruments. Presently, under the WLEP, the FSR for the land would be 0.75:1 and under the DWLEP2003, the proposed FSR, as was submitted by Mr Tomasetti, would be in the vicinity of 1.4:1, being 1:1 plus the area of the heritage item. It was agreed that the proposal would more than comply with that new planning standard.
58 The gross floor area of the upper level of accommodation would be 92.2m2, [Note: Exhibit C p 9], which, on a site of 956m2, represents a FSR increase of around 0.1:1 over that of a development confined to a height not exceeding the level of the proposed terrace on the south western side of the proposed new building. Thus the proposal with the third floor removed would have a FSR of around 0.84:1 on Ms Laidlaw’s calculation, or on Mr Ingham’s calculation, of 0.93:1 and by either method would exceed the present FSR standard. I am satisfied that the proposal would be of excessive height and FSR, and would unreasonably block views to and from the northern verandah corner of ‘Knowle’ and adversely impact on its curtilage. I accept Mr Kovacs’ evidence that the height of the new residential flat building should be limited so as to not exceed the height of the ground floor of ‘Knowle’.
59 The evidence of the applicant was, that there would be increased visibility of the existing building from the south west as a result of the removal of the existing trees and the provision of a terrace on this side, near the ground floor level of ‘Knowle’. That I accept, but consideration must be given to the difference in the screening effect of vegetation compared with the static screening effect of a building. I confirmed, the proposed new third floor of the building would permanently block views towards ‘Knowle’ and from it in the opposite direction. This I achieved by viewing the model in Exhibit B, at the assumed pedestrian eye level in New South Head Road, from oblique viewpoints to the north, looking down New South Head Road, and around No 493 New South Head Road. I also took into account other documentation, such as the architectural and landscape drawings.
60 The evidence of Mr Davies that "...the significance of the existing building will be maintained and the proposal will allow the appreciation and appropriate use of the dwelling" does not persuade me. Mr Davies seemed to be taking into account other than heritage matters in arriving at his conclusion. He said that it would not be necessary for new development on the land to be subservient to the heritage item but the designer should have strong regard to it. Mr Staas stated in oral evidence stated that the "...the viability is dependent on the development of the front of the site", and "the removal of the third level, would not result in this development".
61 The lift accessing the garden level of the proposal would be about 3m above the level of the ground floor verandah of ‘Knowle’ and about 3m distant, [Note: Exhibit N as amended North elevation Drawing No A05.1.R5 and Section BB Drawing No A06.2.R5]. The top floor of the proposed residential flat building would be around 5.2m distant, the parapet would be around 4m above the ground floor verandah of ‘Knowle’ and extend at this height about 11m to the west. As shown in the diagrams prepared by Ms Laidlaw, [Note: Exhibit 5 p 3], the third floor of the proposed new residential flat building would obscure the northern corner verandah of ‘Knowle’ from viewpoints in New South Head Road directly opposite the land. This blocking of the view of ‘Knowle’ would be compounded when viewing from the northwest in New South Head Road on the opposite footpath. If a terrace were created over the roof of the second level of accommodation, in lieu of the third level, the curtilage of ‘Knowle’ would be largely restored, despite being at a slightly higher level than the existing proposed heritage listed garden terrace.
62 I prefer the evidence of Mr Kovacs that the proposal should be subservient and not the dominant feature of development of the land, and I am satisfied that the application should be refused, as it would unreasonably block views to and from the north verandah of ‘Knowle’ and unacceptably impact on its curtilage.
63 Given, that the parties agreed that DLEPAm46 and DLEPAm51 are both certain and imminent, and are to be taken into account in the assessment of the application, I must attribute statutory weight to them. Under the new planning regime, reflected in those instruments, ‘Knowle’ would be a local heritage item and for the calculation of FSR, the gross floor area of that heritage building would be excluded while the FSR would be increased from 0.75:1 to 1:1. Thus, the potential yield for the land would be increased under the new planning regime. Despite this, there would still be need to balance the competing interests of the applicant and those of the public in maintaining a reasonable relationship with and around an heritage item.
64 Although it is not necessary for me to consider the State Environmental Planning Policy No 1 objection to the floor space ratio, (FSR) development standard I have addressed it. It is necessary for me to consider whether compliance with the development standard of 0.75:1 of the WLEP is unreasonable or unnecessary in the circumstances of the case.
SEPP1 objection
65 I have considered the SEPP1 objection to the 0.75:1 FSR standard of the WLEP in the light of the decision of his Honour Lloyd J in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 – 26 at 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):
…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.
66 Taking each question posed by his Honour Lloyd J and answering it:
1. The parties agreed that the maximum 0.75:1 FSR under the WLEP is a development standard;
2. The underlying purpose might be to limit the bulk of buildings on the land;
3. Compliance with the development standard would be consistent with the aims of the Act. The application would not produce orderly and economic development of land and would not be in the public interest. The reasons described above, the proposal would adversely visually impact on ‘Knowle’ and intrude into its reasonable curtilage;
5. The objection is not well founded.4. Compliance with the development standard would not be unreasonable or unnecessary in the circumstances of this case; and
67 In the case of point (4) para 66 above, it is noteworthy that a development that did comply with the development standard would have less bulk and might not result in the likely adverse visual impacts of the proposal on the heritage item, depending on the design. It is also important to note that under the new planning regime the proposed FSR would comply with the applicant’s calculation of the allowable FSR about 1.4:1. Under either regime, the required FSR is a ‘maximum’ and its application must be tempered in the light of any environmental impact on ‘Knowle’. In this case, the proposed third floor of accommodation would adversely impact and would be unacceptable having regard to its impact on the setting and curtilage of the proposed heritage item. As a result I am satisfied that the SEPP1 objection is not well founded.
Other matters
68 Mr Mews was concerned that the proposed excavation for the basement of the proposal, mostly in sand, would be likely to undermine his dwelling to the east and his pathway that runs along the northern side of the subject land, and which gives him access to and from New South Head Road. The applicant proposes contiguous reinforced concrete piling along side that pathway and around the perimeter of the proposed basement. If this is carried out in a workmanlike manner there should be little or no likelihood of parts of Mr Mews property being undermined. However, the applicant is willing to submit to a condition requiring a dilapidation report being undertaken on the outdoor parts of Mr Mews land and in relation to the garden or western side of his dwelling. This condition would be complemented by other conditions requiring the works to be carried out under the supervision of a qualified engineer. I am satisfied as a result that Mr Mews concerns would not be a bar against approval of the application and conditions would suffice to ensure that his interests were reasonably protected.
69 Similarly, some of the residents of Colebrook were concerned for the undermining impacts of the proposal. It is noted that the main building of ‘Colebrook’ is around 19m from the southern boundary of the land and further from any proposed excavation. The 19m-strip within No 177 Bellevue Road, nearest the subject land, does contain a structured car parking area and driveways, which if undermined by the works would cause significant disruption to the lives of those living in this neighbouring building. A condition requiring a dilapidation report on those parts of ‘Colebrook’ within 19m of the common boundary is proposed by the applicant by letter dated 18 December 2003 from Cowley Hearne. Conditions requiring the works to be undertaken in accordance with sound engineering practices would also apply.
70 The applicant has agreed to be bound by Condition 62 in Exhibit 12 that requires the applicant to provide support for neighbouring buildings if an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land. In that event the applicant must preserve and protect the building from damage, and if necessary, underpin and support the building in an approved manner. In addition the applicant must give notice of intention at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, and the owner of the adjoining allotment is not liable for any part of the cost of work carried out. I am satisfied that with conditions in place this matter would not be a reason to refuse the application.
71 If the works were to undermine the neighbouring buildings, it might be expected that action would be taken in the Court itself or in civil action for damages in another place, based on the evidence obtained in the dilapidation reports required under an amended Condition 56 as set out in the letter from Cowley Hearne dated 18 December 2003.
72 The applicant remedied deficiencies in the drawings highlighted by Mr Mews’ advisor, Ms Stening. The proposed extension to the rear of ‘Knowle’ was shown as being new work and the distances from the common boundary with the Mews property were clarified and shown in the amended version of the architectural plans in Exhibit N. I would not refuse the application for these deficiencies. The application fails for reason of its visual impact on ‘Knowle’ and curtilage.
73 The RTA has accepted that the additional traffic likely to be generated by the proposal is capable of being carried on New South Head Road and contrary to Ms Goddard’s request, there is no expert evidence to suggest that the application should fail for traffic related reasons.
74 For the above reasons, the appeal is dismissed when considered under s 97C of the Environmental Planning and Assessment Act 1979.
Orders
75 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. The State Environmental Planning Policy No 1 (SEPP1) objection, against the development standard of 0.75:1 floor space ratio of the WLEP is not well founded.
4. The exhibits with the exception of Exhibits J, N, Q, 1 and 3 are returned.3. Integrated development application No 990 of 2002 lodged with the respondent council on 28 November 2002, as amended, to retain and renovate the existing building, ‘Knowle’, and to use it as two dwellings and to erect a three-level residential flat building comprising four (4) new apartments, over street-level car parking at Lot B, DP 312738, being No 489 New South Head Road, Double Bay, is refused consent.
S J Watts
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