Pilara Developments P/L v Ashfield MC
[2005] NSWLEC 150
•03/11/2005
Land and Environment Court
of New South Wales
CITATION: Pilara Developments P/L v Ashfield MC [2005] NSWLEC 150
PARTIES: APPLICANT
Pilara Developments Pty LtdRESPONDENT
Ashfield Municipal CouncilFILE NUMBER(S): 11249 of 2004
CORAM: Brown C
KEY ISSUES: Development Application :- demolition of two existing dwellings and the construction of a two storey townhouse development - heritage - internal amenity - solar access - disabled access - streetscape - visual bulk
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1995
State Environmental Planning Policy No. 10DATES OF HEARING: 21/02/05, 10/03/05 EX TEMPORE JUDGMENT DATE: 03/11/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr A. Galasso, barrister
SOLICITORS
Landerer & CompanyRESPONDENT
Mr P Jackson, solicitor
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
11 March 2005
JUDGMENT11249 of 2004 Pilara Developments Pty Ltd v Ashfield Municipal Council
1 This is an appeal against the refusal of DA 2004/128 by Ashfield Municipal Council (the council) for the demolition of two existing dwellings and the erection of a two-storey townhouse development at No. 47 and No. 49 Prospect Road, Summer Hill (the site).
2 I record that a view of the site and surrounding area was undertaken on the morning of the first day of the hearing. A number of local residents provided their evidence at this time.
3 The site consists of two separate lots being Lots 6 and 7 in DP5694. It is generally rectangular in shape with a frontage to Robert Street of 49.76 m, a frontage to Prospect Road of 30.52 m, giving a total area of 1536 sq m.
4 The site has a fall of around 2.2 m from its south-western corner to its north-eastern corner. The site contains a dwelling house and garage on each lot. The dwellings were previously used for boarding house accommodation however they are currently vacant. Little vegetation exists on the site except for a large tree near the north-western corner.
5 Adjoining the site to the west is an existing four storey residential flat building. To the north is an existing two-storey Victorian era residence. St Patrick’s Catholic Primary School is located to the east on the opposite side of Prospect Road. Further single and two storey dwellings are located to the south along Prospect Road.
6 The proposal seeks to demolish the two existing dwellings and to construct a two-storey townhouse development consisting of 8 x 3 bedroom dwellings. A basement car park is provided with access from Robert Street.
7 The hearing was adjourned part heard to allow the adjoining owners of No. 51 Prospect Road to review and comment on an amendment that sought to relocate a proposed dwelling adjoining their boundary. The amended plans also included changes sought by the council and contained within the draft conditions of approval. Further changes to the roof were also included following additional conferencing between the heritage experts and the Court appointed expert town planner.
8 The site is located within Zone 2(b) under Ashfield Local Environmental Plan 1985 (the LEP). Residential flat buildings are a permissible use with consent within this zone.
9 Clause 2 of the LEP contains aims and objectives for the plan. Clause 17(2) provides that a building shall not be erected if the building exceeds a floor space ratio (FSR) of 0.75:1. Clause 17A(3)(a) provides the maximum height for a residential flat building of 6 m. There was no dispute that the proposed development satisfies both numerical requirements.
10 Pt IV of the LEP contains heritage provisions. Clause 30 provides aims for this part. Clause 37 requires the Court to assess and take into consideration the likely effect of the proposed development on the heritage significance of a heritage item or heritage conservation area. In this regard the site is not located within a heritage conservation area however it is in the vicinity of identified heritage items at No’s 39, 41, 43, 45, 51 and 59 Prospect Road. St Patrick’s Primary School site is also an identified heritage item.
11 Ashfield Development Control Plan No 1 - Dwellings in Residential Zones (the DCP) applies to all residential zones. Clause 3.6 provides requirements for heritage conservation.
12 The council filed an Amended Statement of Issues containing 10 separate issues and particulars. The issue relating to State Environmental Planning Policy No 10 - Retention of Low Cost Rental Accommodation (issue 7) was not pressed by the council following concurrence from the Department of Infrastructure Planing and Natural Resources. Additionally the issues relating to internal amenity, particularly solar access (Issues 3, 4, and 5) and disabled access (Issue 9) were addressed through the amended plans.
13 The remaining issues can be conveniently grouped into the following main areas:
2. Whether the proposed development creates unacceptable amenity impacts on the property at 51 Prospect Road (Issue 8).1. Whether the proposed development is unacceptable in heritage terms, particularly considering the loss of the dwelling at 47 Prospect Road, the impact on the identified heritage items and impacts on the streetscape (Issues 1, 2 and 6) and
14 The issue relating to the matters raised by resident objectors (Issue 10) are discussed as part of the above issues.
15 The parties agreed to the appointment of Ms Deborah Laidlaw as the Court appointed town planning expert. Mr Robert Moore provided heritage evidence for the council and Mr Steven Davies provided heritage evidence for the applicant.
16 Following the adjournment for the notification of the amended plans, leave was granted for additional evidence to be provided. In this regard Mr Moore and Ms Laidlaw provided supplementary statements. The owners of the property at No. 51 Prospect Road also provided a further submission on the amended plans.
17 On the issue of heritage impact, the principal position put by the council was that the demolition of the dwelling at No. 47 Prospect Road should not be allowed as the dwelling has heritage significance. The secondary position put by the council, if the Court did not accept its primary position, was that the design did not adequately respond to its location adjoining nearby two designated heritage items. The design was also unresponsive to the heritage streetscape of both Prospect Road and Robert Street.
18 Mr Moore and Mr Davies agreed that the dwelling at No. 47 Prospect Road made a contribution to its locale but they could not agree on its significance. In accepting that the dwelling at No. 49 Prospect Road made some contribution to the setting, it was agreed by Mr Moore and Mr Davies that it did not raise the same heritage issues as No. 47 Prospect Road and its demolition was not determinative in these proceedings.
19 The dwelling at No. 47 Prospect Road is not a heritage item although it was originally recommended for inclusion in the local environmental plan as a heritage item of local significance. The recommendation was however not adopted by the elected council. Recent attempts have been made to reconsider the previous resolution of the council however any further action has been deferred pending the outcome of this hearing.
20 Mr Moore maintains that development options for the site should be explored where the dwelling forms part of a more intense site use. In his opinion, a development could be designed around its inherent qualities and relationship with other nearby dwellings. Mr Davies responds by stating that while the dwelling sits comfortably in the streetscape it does not demonstrate the necessary degree of cultural value to meet the threshold for listing. In his opinion, it is not of high aesthetic historic or representative value. The significance must also be weighed against the poor condition of the dwelling and low integrity of the fabric that will require a substantial input of resources for refurbishment.
21 In considering the competing views and whether the dwelling may be demolished, some considerable weight must be given to the status of the dwelling as set out in the council’s planning controls. This document is the basis for consideration as it represents the council’s adopted position.
22 In this case the dwelling is not identified as a heritage item or located within a heritage conservation area. While the Court was urged to attribute some considerable heritage significance to the dwelling to allow for its retention I am not convinced that the evidence supports this submission.
23 The evidence of Mr Moore places the significance at no greater than a desire to explore the potential to include the dwelling in any future development of the land. The recommendation of the council, coincidentally by Mr Moore, to include the dwelling as a heritage item is on the basis “to empower council to negotiate any replacement development when and if that may be proposed”. The fact that the council had the opportunity to list the dwelling as a heritage item and chose not to do so gives weight to the applicant’s submission that the demolition is appropriate.
24 With the benefit of the site view, I also agree with Mr Davies that the dwelling has been considerably modified through its previous use as a boarding house and while restoration could be undertaken it is likely to require substantial resources. For these reasons, I accept that the dwelling may be demolished.
25 The secondary submission by the council that the proposed development is unsympathetic to its heritage context was addressed from the Prospect Road frontage and the Robert Street frontage. Ms Laidlaw also addressed the issue of streetscape as the more general issue of streetscape overlapped the more specific heritage assessment.
26 The Prospect Road frontage provides for two separate, two storey building forms in very similar locations to the existing dwellings. The significant difference between the parties is the form of the building proposed on No. 49 Prospect Road. Mr Moore suggests that a single storey design with a sensitively designed room-in-the-roof would be more appropriate as it would provide a transition between the single storey form of No. 51 Prospect Road and the two storey form of the proposed building on No. 47 Prospect Road.
27 Mr Davies describes the proposed development as being compatible in the streetscape. He states that the site has the ability to be adapted or replaced in terms of its heritage significance however any new work must relate to the particular location and context. If the proposed development is considered against these requirements, Mr Davies concludes that the proposal is acceptable.
28 Ms Laidlaw describes the composition of the built form as a positive aspect of the proposal. She accepts the proposed two storey form of the building at 49 Prospect Road as an honest architectural expression of contemporary development. It is more consistent with the original subdivision pattern, built form, style and proportion of contributory development in the street. She raises some concern with the idea of a single story development with a room-in-the-roof configuration, as it would be unlike any other form of development in the streetscape.
29 In considering the evidence I agree with the submissions of Mr Davies and Ms Laidlaw. I accept that the proposal provides an acceptable appearance in the streetscape. There is some merit in Ms Laidlaw’s comments on the foreign nature of a single storey development with a room-in-the-roof form in this particular streetscape. In my view, the two storey nature of the building at 49 Prospect Road does not unbalance the streetscape to the point where it would require amendment if other streetscape elements such as the setbacks, landscaping and location of the proposed buildings are considered. I am also mindful of the heritage item located at No. 51 Prospect Road, on the opposite side of Robert Street to the site, is also two storeys in height.
30 The Robert Street elevation was the subject of further discussion between the experts and further plans providing for simplification of the roof form, removal of gable ends and different street fencing. Reductions in the amount of glazing were also suggested by Mr Moore and accepted by the applicant.
31 While the amendments did not remove Mr Moore’s total concerns over the proposal they nonetheless reduced them. With the amendments, I accept that the proposal provides an acceptable streetscape appearance to Robert Street. The amendments provide a simple elevation and roof form that is more complementary to the form, style and proportion of traditional architecture found in the general area.
32 In accordance with cl 37 of the LEP, I find that the proposal is acceptable in terms of its relationship wit nearby heritage items. I find the proposal also acceptable considering the heritage requirements in cl 1.4, 2.41, 3.2, 3.3 and 3.6 of the DCP.
33 The other significant issue in the proceedings was the impact on the amenity of No. 47 Prospect Street. This property is owned by Ms Michelle Levy and Mr Joseph Hallion. The recent amendments relocated Unit 8 from the rear of the adjoining property to the front of the property adjoining Unit 1. This has the effect of reducing the visual bulk of Unit 8 from the rear yard of No. 47 Prospect Street and locating the unit to a position that adjoins the existing dwelling on No. 47 Prospect Street.
34 The opportunity was provided for Ms Levy and Mr Hallion to comment on the amendment and in response they stated that the repositioning of Unit 8 does not address the significant issues they raised previously in their submissions. Their concerns still relate to the areas of visual bulk, overshadowing and the accuracy of the plans.
35 In response to the amended plans, Ms Laidlaw provided a further report on the amendments and concludes that the amendments are a significant improvement over the original design. The visual bulk and overshadowing, as well as the privacy impacts of this part of the development are now much reduced. Although there is now a greater volume of built form at the front of the site, it is in principle a better location as it adheres to the more traditional pattern of development in the area.
36 In terms of overshadowing Ms Laidlaw notes that the shadow impact over the northern wall of No. 51 Prospect is slightly different to those created by the existing building but the net impact is very similar. Importantly, the proposal would comply with the DCP requirements for solar access. Ms Laidlaw also concludes that the shadowing of the rear yard would not exceed 50%, even taking into account a shadowing from the existing residential flat building to the west and also considering that much of the proposal’s shadow would overlap the shadow already created by the existing fence line.
37 In relation to the accuracy of the plans, Ms Laidlaw states that her assessment also found errors however a revised set of shadow diagrams were produced and her assessment has been based on the new shadow diagrams.
38 On balance I agree with the conclusions of Ms Laidlaw. While the proposal will create additional impacts not felt by the owners of the adjoining property, the form of development proposed is envisaged by the council’s planning control. The design provides an appropriate balance between the need to protect the amenity of the adjoining property and the ability to redevelop the site within its heritage context.
39 For these reasons the orders of the Court are:
1. The appeal is upheld.
3. The exhibits are returned with the exception of Exhibits 1, 2 and F.2. Development Application 2004/128 for the demolition of two existing dwellings and the erection of a two storey townhouse development at No. 47-49 Prospect Road, Summer Hill is approved subject to the conditions in Annexure ‘A’.
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