Rahmani v Ku-ring-gai Council

[2004] NSWLEC 595

Land and Environment Court

of New South Wales

CITATION:

Rahmani v Ku-ring-gai Council [2004] NSWLEC 595

PARTIES:

APPLICANT
Rahmani S

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10721 of 2004

CORAM:

Bly C

KEY ISSUES:

Designated Development :- Dual occupancy - demolition of dwelling of heritage significance

LEGISLATION CITED:

State Environmental Planning Policy No. 53 - Metropoliltan Residential Developoment
Ku-ring-gai Planning Scheme Ordinance
Draft (Heritage Conservation) Local Environmental Plan No. 29

CASES CITED:

DATES OF HEARING:

27-28/09/2004

DATE OF JUDGMENT:

10/27/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mt P Clay, barrister
SOLICITORS
McKees Legal Solutions

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

- 9 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

27 October 2004

10721 of 2004 Rahmani S v Ku-ring-gai Council

JUDGMENT

1. This appeal relates to the refusal by the Ku-ring-gai Council of Development Application No. 795/02 which is for the demolition of an existing dwelling house and the erection of a dual occupancy development comprising two two-storey dwelling houses at 27 Richmond Avenue, St Ives.

2. The site, which comprises Lot 5 in DP 220538, is situated on the northern side of Richmond Avenue, has an area of a little over 900 m sq and a frontage of about 20 m. It has a fall of approximately 3 m towards the street. It is located in an area predominantly developed with detached dwelling houses plus some medium density development.

Statutory provisions

3. The application was made pursuant to State Environmental Planning Policy No. 53 - Metropolitan Residential Development which policy aims to broaden housing that efficiently uses existing infrastructure, and reduces the consumption of land. Such housing is to be of good design. To these ends, cl 3 of SEPP 53 makes references to planning controls which provide for a variety of housing types and design principles to achieve built forms which are responsive to the characteristics of individual sites and their location.

4. Clause 18 of SEPP 53 permits dual occupancy development subject to obtaining development consent. Clauses 19 and 20 contain development standards relating to lot size, floor space ratio and car parking and these standards are met by the proposal.

5. Relevant to this application, cl 32 requires that regard must be given to the following principle:

(a) Streetscape


The proposed development should:

(i) contribute to an attractive residential environment with clear character and identity, and

(ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan.

6 Under the Ku-ring-gai Planning Scheme Ordinance ("the Planning Scheme") the site is included in a Residential zone. Clause 61E of the planning scheme requires that:

61E The council shall not grant consent to an application to carry out development on land in the vicinity of a heritage item unless it has made an assessment of the effect the carrying out of that development will have on the heritage significance of the item and its setting.

7 Relevantly Sch 7 of the Planning Scheme identifies heritage items in Ku-ring-gai including Nos. 19, 21, 23, 25 and 29 Richmond Avenue. With No. 27 being located in the midst of this group, cl 61E is applicable. This requirement can effectively be met by the Court’s consideration of the various heritage reports prepared by the experts who gave evidence in these proceedings.

7 In 1989 No. 27 together with the above-mentioned properties in Richmond Avenue was listed in Sch 7 of the Planning Scheme as a heritage item. However in 1991 it was removed from this schedule on an understanding that the basis for its original inclusion was wrong. Accepting now that the heritage listing for this property should be reinstated, council has prepared Draft (Heritage Conservation) Local Environmental Plan No. 29 ("draft LEP 29") to this effect.

8 Whilst the house at No. 27 is not at this time a heritage item, I am satisfied that it has heritage significance hence, taking also into account draft LEP 29, cl 61D(2) of the Planning Scheme can, in principle, be applied:

61D (1) …

(2) The council shall not grant consent to a development application under subcl (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features of its setting.

10. As with cl 61E, cl 61D of the Planning Scheme can effectively be met by the Court’s consideration of the expert heritage reports.

Advertising and council's decision

11. The application was advertised and 14 objections were received. Matters of concern raised in these objections include loss of visual privacy, adverse acoustic impacts, heritage significance, streetscape impacts, setbacks, stormwater disposal, traffic impacts, excessive density and tree removal. A number of residents gave evidence elaborating these concerns when the hearing began on site.

12. Notwithstanding a supporting report prepared by council officers the council refused the application for reasons relating to streetscape, impacts on neighbouring properties and the heritage significance of the existing dwelling house on the site.

The evidence

13. Expert town planning evidence was provided by Miss K Gordon, the Court appointed town planner.

14. On behalf of the respondent council evidence was provided by:

· Miss S Burke - heritage consultant

· Mr R Moore - heritage consultant

· Mr K Woolley - architect

15. On behalf of the applicant expert evidence was provided by:

· Mr S Davies - heritage consultant

· Mr S Pittendrigh - landscape architect

The issues

16. The remaining substantive issues in the case are:

1. Whether the existing dwelling house has such heritage significance that it ought not to be demolished.

2. Whether the proposed dual occupancy development would have an adverse impact on the streetscape particularly in relation to building line.

Heritage significance

17. The expert heritage reports provide an extensive examination of the history and heritage significance of 27 Richmond Avenue and its heritage listed neighbours, which does not need to be comprehensively repeated here. However, the essential and more relevant aspects of this evidence is as follows.

18. In the 1950's and 1960's the suburbs of Australian cities were undergoing a transformation that was emerging from prospective homeowners who were increasingly able to afford better designed homes. In this context the so called project home, in many cases architect designed, became popular.

19. In 1961, Ron Sevitt and Brian Petitt formed the project home building company Petitt and Sevitt. Shortly after its formation the company engaged Ken Woolley (and others) a highly recognised and awarded architect. Mr Woolley was one of a number of architects instrumental in the provision of radically improved house designs for suburban Sydney, and was an important contributor to the architectural movement known as the Sydney School.

20. Architects of the Sydney School were recognised for their approach of designing buildings in a natural landscape with minimal site disturbance. The materials and building forms that were utilised were responsive to native vegetation and natural terrain and reflected a sense of informality.

21. Mr Woolley's first house design for Petitt and Sevitt was the "Split Level" home and the sale of this home and the resultant publicity enabled the company to start its first "exhibition centre" in Carlingford. Two homes were built here; a "Split Level" and a "Lowline" and the resulting success allowed them to initiate a larger exhibition centre in 1964 in Richmond Avenue.

22. The so-called St Ives Group, began with four homes designed by Ken Woolley: a "Split Level Mk I”, a "Split Level Mk II", a " Lowline" and a "Courtyard House". Two more Ken Woolley designs were soon added being the "Two Storey" and the "Mk VII" which was later renamed "The Gambrel".

23. The house, which is the subject of this appeal, is the prototype "Gambrel" house and is the very first example of this design and was the smallest and cheapest in the Petitt and Sevitt range. The house was, consistent with the Petitt and Sevitt policy; a basic design which was able to be extended in modules of 3 ft. Forty-five contracts for the Gambrel design were issued in the first two years and it is this design that won the Institute of Architects 1967 Project Home Award.

24. In addition to the Gambrel, three other houses in the Richmond Avenue exhibition group are also prototypes of their designs. The houses in this group, importantly, had a siting relationship with one another, being oriented to the slope and having opportunities to borrow views across the gardens and adjacent landscape. The landscaping or the houses in the group was carried out by landscape designer Bruce MacKenzie, one of Australia's foremost promoters of native landscapes in urban settings.

Heritage Evidence

25. The NSW Heritage Office has considered the significance of this group and concluded that whilst it is of heritage significance, in the absence of any conclusive comparative assessments on a State wide basis, it cannot reach any definitive conclusion that the group is of State heritage significance. That office did not assess the proposal against local heritage significance criteria.

26. The Royal Australian Institute of Architects advised that it supports the retention of this group of homes being one of the project house villages of the past that can be used as an exemplar today. The Institute also advised that the demolition of one of the houses in this group will adversely impact on the significance of this place.

27. The three heritage experts and Mr Woolley conferred and prepared a joint report.

28. In the joint report Mr Davies explained that there are a number of reasons why No. 27 Richmond Avenue does not presently have sufficient heritage significance to warrant its retention. First the design has been replicated in various forms many times. Second the materials used were low cost and the internal spaces are small, resulting in the design not now being suitable as a single dwelling for this site. The dwelling is not technically significant and has been altered. To achieve liveability today, significant extensions and alterations would be required and such changes would obscure the house from view and confuse its original presentation in its context.

29. He contends that the Richmond Avenue group of houses can no longer be interpreted as that of a single designer because of the significant alterations that have taken place not only to the houses but also to the landscape setting. The integrity of the original estate has been severely diminished.

30. Mr Davies also pointed out that the work of Ken Woolley and Bruce MacKenzie is recognised elsewhere in more significant examples, although he did recognise that this group of dwellings has the ability to illustrate physically the work of Petitt and Sevitt and their association with Ken Woolley.

31. Mr Moore and Miss Burke did not accept Mr Davies' concerns, arguing at length in their reports as to why the facts associated with this house and the group warrant the protection of the house. Mr Moore pointed out that notwithstanding the usual incremental changes over time the group has not lost its significance nor have the individual houses. He agreed with Mr Woolley that the house is capable of extension and change to make it more liveable, and that this could occur in a manner that would recognize and maintain the original design without loss of integrity.

32. Miss Burke did not accept that the changes that have occurred to the group would diminish its social significance. She believes that it continues to have a strong influence and interpretability. Mr Moore was of the opinion that the group is significant for the municipality and beyond, being milestones of architectural development having a distinctive nature and integrity. Of considerable importance is the fact that the homes in the group were the product of a coordination of landscape and house designs which had a relationship to one another.

33. Mr Davies agreed that there are options available including adding to the house in a manner that would retain its form and layout but does not consider that this would be a successful outcome in heritage terms.

Court's conclusions

34. Taking this evidence into account, the thrust of the principle in cl 32 of SREP 32, the listing of the houses in the group as heritage items in the Planning Scheme and the proposed listing of No. 27 Richmond Avenue as heritage item I have not been persuaded that the demolition application should be granted.

35. I have reached this conclusion taking into account the following factors:

· The house is the prototype of the Petitt and Sevitt Mark VII design project house later known as the Gambrel which was subsequently replicated many times in various forms.

· The houses is in the group are early examples of Ken Woolley's domestic work, he being an important architect in the Sydney School of domestic architecture.

· The house is part of and an important contributor to the Richmond Avenue exhibition group, a group of listed heritage items, including four prototype designs.

· The Gambrel house design was the winner of an RAIA project house design award.

· The Richmond Avenue group is different to other display home villages having been designed in a co-ordinated manner by a single architect and landscape architect.

36. Whilst the significance of the group is affected by the extent to which the homes in it have been modified, these modifications are not in my opinion sufficient to overcome the above factors that together attract a level of significance sufficient to warrant the retention of No. 27. Nor can the fact that No. 27 is a small low cost building.

37. Notwithstanding the heritage significance of the house, the property clearly warrants some form of redevelopment. Whilst I understand the degree of difficulty and the limitations associated with any such redevelopment I am satisfied, particularly taking into account the evidence of Mr Woolley that a sympathetic redevelopment is possible. This may not be able to take place to the extent and scale that the applicant wishes but given the heritage significance of No. 27 and the Richmond Avenue group of houses a restricted form of development can be the only result.

Conclusion and orders

38. I have therefore decided that on the basis of heritage considerations, the appeal should be dismissed. In the circumstances there is no utility in any examination of the merits of the proposed dual occupancy development.

39. The orders of the Court are therefore:

1. The appeal is dismissed.

2. Development Application No. 795/02 for the demolition of an existing dwelling house and the erection of a dual occupancy development comprising two, two-storey dwelling houses at 27 Richmond Avenue, St Ives, is determined by the refusal of development consent.

3. The exhibits are returned.

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