PS Graham and Assoc. v Hornsby SC

[2005] NSWLEC 545

Land and Environment Court

of New South Wales

CITATION:

PS Graham & Assoc. v Hornsby SC & Ors. [2005] NSWLEC 545

PARTIES:

APPLICANT
P S Graham & Associates

1st RESPONDENT
Hornsby Shire Council

2nd RESPONDENT
William Lohman

3rd RESPONDENT
Brian and Cathy Burke

4th RESPONDENT
Rex Sadler

FILE NUMBER(S):

11187 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- subdivision - vehicular access - existing house - heritage significance.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994
Residential Subdivision Development Control Plan
Heritage Development Control Plan

DATES OF HEARING:

25/08/2005

 
DATE OF JUDGMENT: 

10/06/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr I. Hemmings, barrister
Instructed by Ms M. Peatman, solicitor
of Hunt and Hunt

1st RESPONDENT
Mr B. Preston, SC
instructed by Mr I. Woodward, solicitor
of Storey & Gough

2nd, 3rd & 4th RESPONDENT
Mr P. White, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

6 October 2005

11187 of 2004 P S Graham & Associates v Hornsby Shire Council & Ors.

JUDGMENT

Introduction

1 This appeal relates to Development Application No 2311/03, which is for the subdivision of lot 105 DP 601734 into two lots. The site is described as No. 29B Albert Road, Beecroft, and is a hatchet shaped lot with an area of 3,394 sq m including the access corridor, which has a length of 72 m and a width of 3.2 m. The site is occupied by a single-storey dwelling house ("the Wilkinson house") and associated swimming pool, carport and shed. The pool, carport and shed are to be demolished. A number of mature trees are to be removed.

2 Proposed lot 1 is to have an area of 1,053 sq m and proposed lot 2 containing the existing house will have an area of 2,120 sq m (both areas exclude the access corridor). A hypothetical house design for proposed lot 1 has been provided ("the proposed house") in support of a slightly amended subdivision design. Additional information in relation to flooding, drainage, landscaping, access, cut and fill has been provided by the applicant.

3 The site is one of four existing hatchet shaped lots with shared rights of carriageway over their respective access corridors off Albert Road. The existing 2.5 m wide paved driveway in these access corridors is to be upgraded and provided with passing bays. It will provide vehicular access to the rear of the existing house on lot 2 and to the rear of the house designed for lot 1 and will continue to provide access to lots 105, 106 and 107.

4 There is a watercourse that flows across the northern part of the site into the adjacent Devlin's Creek. The northern part of the site is subject to localised flooding where it is vegetated with local indigenous and exotic plant species.

5 The existing house on the site is of local heritage significance having been designed by Prof Leslie Wilkinson, the first Professor of Architecture at the University of Sydney.

6 Being a hatchet shaped lot the site is surrounded on all sides by dwelling houses, that are characteristic of the locality.

Statutory provisions

7 The site is zoned Residential AS (Low Density - Sensitive Lands) under Hornsby Shire Local Environmental Plan 1994 ("the LEP"). Subdivision and demolition are permissible with development consent.

8 Clause 7(2) of the LEP requires that the objectives of the zone be taken into account before development consent is given. The objectives of the zone are:

(a) to provide for the housing needs of the population of the Hornsby area.
(b) to provide a variety of housing types and other land uses compatible with the low density residential environment and sensitive to the land capability and established character of this environment.
(c) to provide for development and is within the environmental capacity of a sensitive low density residential environment.

9 Under cl 14(2) of the LEP a minimum lot size of 600 sq m applies for subdivision in the Residential AS zone. The proposed subdivision meets this requirement.

10 The existing house is, an item of environmental heritage of local significance under Schedule D of the LEP. The site is also located within the Beecroft - Cheltenham Heritage Conservation Area ("the conservation area") under Schedule E of the LEP.

11 Clause 18(3) and (6) of the LEP requires consideration and assessment of possible impacts on heritage items and conservation areas. The objective of the heritage provisions in the LEP is:

To provide for continuity with the past by conserving the heritage of the Hornsby area and to ensure that aboriginal heritage is preserved and conserved wherever possible.

12 Also relevantly applicable are Council's Residential Subdivision Development Control Plan ("the subdivision DCP") and Heritage Development Control Plan ("the heritage DCP").

13 The proposed subdivision comprises integrated development under the Environmental Planning and Assessment Act 1979 (" the EPA Act"), being within 40 m of a watercourse. The Department of Planning (formerly the Department of Infrastructure Planning and Natural Resources) has advised of their General Terms of Approval for the issue of a permit under the Rivers and Foreshores Improvement Act.

14 The development application was advertised in December 2003 resulting in nine letters of objection being received. Matters of concern raised in these objections include:

• Inappropriate use of the right-of-way and failure to obtain the agreement of the owners. Whether the existing carriageway is suitable for additional traffic including matters of passing, turning radius and visibility.
• Impacts on adjoining houses associated with additional traffic using the various rights-of-way especially on lots 106 and 107. The inability of the design to facilitate visitor and service vehicles leaving in a forward direction.
• Whether works associated with the driveway and works on the site will cause increased local flooding.
• Inadequate provision of garbage collection services.
• The inappropriate removal of a number of mature trees and other vegetation.

15 The amended proposal now the subject of the application and the appeal has been considered by neighbours who continue to object to it for similar reasons.

16 On behalf of the respondent council expert evidence was given by:

• Mr C. Lucas - architect and heritage consultant

17 Own behalf of the applicant expert evidence was given by:

• Mr L. Tropman - architect and heritage consultant.
• Mr C. McLaren - traffic engineer
• Mr G. McDonald - drainage engineer

18 In addition drainage and flooding evidence was given by Mr D Bewsher, the Court-appointed expert. Mr Bewsher’s advice has now been taken into account for the proposed site modifications to provide an appropriate flood storage area and I am satisfied that concerns in this regard have now been resolved.

19 Having considered all of the evidence and taken a view of the site and its environs I have concluded that the issues for the resolution of the Court are twofold:

• Whether the impacts on the neighbouring residents’ environment particularly associated with vehicular traffic would be of such significance that the application should be refused.
• Whether the proposal would so adversely affect the heritage significance of the Wilkinson house and its setting that the application should be refused.

Traffic and access

20 Mr McLaren's recommendations in relation to the driveway including the provision of passing bays have now been incorporated into the proposal. Taking into account his advice together with the advice of Mr G. Pindar that was included in Mr McLaren's report, I am satisfied that the revised driveway proposal is now satisfactory. More particularly I am satisfied that, notwithstanding the concerns of the residents, that the driveway will provide a good standard of access to all of the properties that it will serve.

21 I also accept that the manner of providing vehicular access to the rear of the existing and the proposed dwelling is appropriate. I have reached this conclusion notwithstanding that there may be some difficulty for visiting vehicles to turn around and exit the site in a forward direction when the four proposed parking spaces are fully occupied. This situation is only likely to arise on very infrequent occasions such that this concern cannot be determinative of the application.

22 Concerns were also raised as to the possible amenity and safety impacts associated with the traffic generated by the existing and proposed houses along the driveway at the rear of those houses. Again this is not a matter of determinative concern given the likelihood of very low vehicle movement numbers very low accident potential.

Heritage significance

23 According to Mr Lucas the house is an important late work of Professor Wilkinson, built in 1951 - 1953 following several grander designs produced by him. Alterations of significance to the house since then include unsympathetic internal alterations and the conversion of the garage into another room in 1975. The house is rundown. The garden layout appears to be original and its layout was probably based on the advice of Professor Wilkinson. It is presently neglected. The house is the only Wilkinson house in north-western suburban Sydney and the only such house in the Hornsby Shire. The setting of the house is an integral part of the heritage item.

24 Mr Lucas is of the opinion that the Wilkinson house and garden are capable of restoration. He is also of the opinion that the setting of the house needs to be saved and the subdivision should not be allowed because the subdivision would, in turn, facilitate the construction of a house in what was the service yard situated between the house and the creek.

25 Being highly critical of the proposed house Mr Lucas commented that:

• Its height and bulk would be aggressively overbearing and out of scale,
• The materials are incompatible and of low aesthetic quality,
• It overlooks the remains of the garden,
• Windows face the remaining garden at the side and front of the Wilkinson house,
• The front door faces the Wilkinson house as does the side access way that will overlook the garden area,

26 In relation to the setting of the Wilkinson house Mr Lucas commented that:

• The open rural setting will be lost especially when viewed from the north east towards the access driveway,
• The background will in part comprise the proposed house that will in turn block views of trees,
• Proposed landscaping will assist to some degree but will not provide an appropriate setting
• The outlook from the dining room will be adversely affected by the new driveway that will necessitate the removal of trees.

27 Mr Tropman similarly recognised the heritage significance of the Wilkinson house commenting that it is a fine example of an intact Post-War cottage but disagreed with Mr Lucas in relation to its setting and the impacts associated with the subdivision including the proposed house. He commented that:

• The house has social and technical/research significance
• The heritage values of the place include the front setting, the northerly aspect of the house and the remnant landscape elements associated with the original garden design including the watercourse.
• The garden is an evolving and changing element.
• The setting has over the years been extensively modified, for example by the construction of a culvert and three new houses.
• The subdivision would facilitate the design of a simple house that would compliment the existing house and gardens. The proposed house is an example of this and would enable the existing house to maintain its dominance in the landscape.

28 It was Mr Tropman's opinion that the original setting of the Wilkinson house comprising orchards and open paddocks has changed substantially since the 1950's. The setting is now suburban rather than rural comprising part of the housing development in Beecroft. Whilst the present vegetated framing of the house will change, this will not adversely affect the setting.

29 In my view the aspects of heritage significance associated with the Wilkinson house are threefold: the house itself; the outlook from the house both to the north and south; and the appearance of the house in its setting.

30 As for the house itself I am satisfied that it would not be adversely affected by the proposal. The service area and vegetable garden to the east has long since being lost but the subdivision and the removal of the swimming pool will now enable the use of at least some of this area for the original purpose should that be appropriate.

31 The outlook to the north from the Wilkinson house will not be adversely affected by the subdivision or by the erection of a new house in the location proposed. With the implementation of an appropriate landscaping regime for the garden areas to the north of the house I would expect that the outlook could be restored such that it is more appropriate in heritage sense to what presently exists. The outlook from the dining room will be changed but appropriate landscaping will ensure a satisfactory outcome.

32 The greatest change in heritage terms will involve a significant change to the setting of the Wilkinson house and in this regard I agree that the appropriate positions from which to contemplate this setting are at the north-eastern corner of the site in the vicinity of the driveway. Ignoring for the moment the existing vegetation in front of it that interrupts some views, the whole of the Wilkinson house relevantly including its western end, is framed with vegetation. Again leaving aside existing and proposed vegetation the proposed house, about 8.5 m to the west, will appear beside the Wilkinson house when viewed from the positions described above.

33 The landscape plan shows that at least two of the trees on the site that contribute to the vegetated framing behind the western end of the Wilkinson house are to be removed. Of course trees beyond the site are unaffected by this proposal. Replacement trees are to be provided to the west of the Wilkinson house on proposed lots 1 and 2 and a 20 m long screen hedge along the eastern boundary of proposed lot 1.

34 Plainly, the setting of the Wilkinson house will be changed by this proposal especially by the proposed house, but not critically. On balance I have decided that the appearance of a house within the setting, bearing in mind what I have decided about the other heritage aspects will not so adversely affect the heritage significance of the Wilkinson house that the application should be refused. In this regard I have been persuaded by the evidence of Mr Tropman and am satisfied that the proposal would not seriously affect the continuity with the past as evidenced by the Wilkinson house.

35 In reaching this conclusion I have taken into account the extent to which the Wilkinson house can be seen through existing vegetation to the north of the house, this being a relevant part of its setting. I have also taken into account opportunities for additional and replacement landscaping as well as the opportunity to construct a reasonable house on lot 1 as indicated by the proposed house design. Taking into account the size and location of such a house and appropriate landscaping this should minimise the effect on the heritage significance of the Wilkinson house. More generally, just as the surroundings of the site have changed over time so too will this proposal comprise part of what I conclude to be a reasonable evolution and the orderly and economic development of land, that will be consistent with the objectives of the Residential AS zone and the conservation area.

36 In my view the proposed landscaping scheme shown in the landscape plan, and the design of proposed house whilst both being essentially satisfactory can and should be improved as part of a future development application. The proposed house design can be modified so as to provide better opportunities for landscaping along the eastern side of lot 1. The size of the front "open area" can be reduced in width and the roof overhanging above this area can also be reduced. There may be other beneficial changes that an architect sensitive to the important heritage requirements might recommend. Such changes could further improve the relationship between the proposed house and the Wilkinson house.

37 The final landscaping design for Lot 2 must be subject to the approval of the council. This design should ensure the provision of appropriate landscaping in terms of location, height and species is provided between the Wilkinson house and proposed Lot 1 and Lot 2 generally. This should contribute to the landscaped setting for the house and its outlook.

Conditions

38 The draft conditions of consent were agreed; with the exception of 36(h), which requires that written consent for works within the driveway favouring the proposal, shall be obtained from the proprietors of the affected lands prior to the issue of a construction certificate. This condition was pressed by the second respondent.

39 I have deleted condition 36(h) because I agree with the submissions presented on behalf of the applicant that if consent is needed to carry out for works this is a matter between the parties.

Owner's consent

40 The applicant submitted that if the appeal is to be upheld, final orders should not be made because owners consent for the development application insofar as it involves works in the adjacent right of ways has not been obtained. This consent is to be distinguished from the owners consent referred to in pars 39 and 40 above. Those works relate to the proposed widening of the driveway and but for this deficiency in the development application I would have approved them.

41 I have nevertheless decided that deferred commencement consent can be issued for the subdivision and effectively for those works associated with the subdivision where those works are situated wholly upon the land owned by the applicant and which are part of the development application. The deferred commencement condition will have the effect that until all necessary consents have been obtained the works cannot proceed.

42 It is therefore the decision of the court that:

1. The appeal is upheld.
2. Development Application No. 2311/03, for the subdivision of Lot 105 DP 601734 into two lots is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibits F and G are retained.

___________________

T A Bly
Commissioner of the Court
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