Rocca v Ashfield Council
[2011] NSWLEC 1361
•13 December 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Rocca & Anor v Ashfield Council [2011] NSWLEC 1361 Hearing dates: 2 December 2011 Decision date: 13 December 2011 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld
Catchwords: DEVELOPMENT APPLICATION - weight to be applied to draft LEP; whether dwelling should be demolished; contribution of dwelling to character and streetscape; whether dwelling has heritage significance; dual occupancy; bulk, scale and height. Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Ashfield Local Environmental Plan 1985 Cases Cited: Carstens v Pittwater Council [1999] NSWLEC 249 Texts Cited: Ashfield Heritage Review of Properties zoned Residential 2(a) and some other properties Stage 5: Ashfield South - Final Report;
Ashfield DCP 2007Category: Principal judgment Parties: Raffaele & Teresa Rocca (Applicant)
Ashfield Council (Respondent)Representation: Counsel
Ms C Rose
Dr S Berveling (Applicant)
Solicitors
Mr B Goldsmith (Applicant's agent)
Maddocks Lawyers (Respondent)
File Number(s): 10755 of 2011
Judgment
This is a hearing under s 34AA(2)(b)(i) of the Land and Environment Court Act 1979 (the LEC Act) held following the termination of a conciliation conference. Ashfield Council has refused Development Application No 10.2011.078 which proposed the demolition of an existing dwelling house and the construction of a two-storey attached dual occupancy and a detached garage for two vehicles at the rear of the site at No 13 Service Avenue, Ashfield (the site) and the applicants are appealing that decision.
As part of the conciliation phase, the applicants prepared amended plans to reflect recommendations of the council's experts made at the initial conference. Leave was granted to rely on those plans and the changes were considered to be 'minor' for the purposes of s 97B(1) of the Environmental Planning and Assessment Act 1979 (the Act). Those changes involved alternate fenestration and attic treatment however maintained the building footprint and floor plan layout. Those plans (Exhibit A) were the subject of further discussions and agreed changes, which, subject to resolution of two remaining contentions, could be addressed as conditions of consent.
The council had originally identified 8 contentions that have been resolved in part through the changes made to the plans. The issues are now confined to two and they are whether the existing dwelling should be demolished and whether the two-storey form and appearance of the proposed dual occupancy is uncharacteristic of the locality.
The site and its context
The site is located on the south-western corner of Service Avenue and Harland Street and has frontages of 12.19m and 41.15m to each street respectively. Site area is 501.6sqm and the land falls approximately 1.5 m from the north-east to south-west.
A single-storey, modified, Victorian style cottage is currently erected on the site and it is agreed that it would have been constructed around 1890. A metal carport and a fibro shed are located to the rear of the dwelling with vehicular access provided from Harland Street.
Development surrounding the site primarily comprises single storey, detached cottages. There are a few two-storey and one pair of semi-detached dwellings in Service Avenue. The majority of two-storey dwellings are the result of sympathetic additions to the original dwellings however there is also evidence of new buildings and less considered outcomes.
Background and the proposal
It is clear from the council's bundle that the application has been the subject of considerable discussion and advice regarding what the council considered was an appropriate building form for the site. The applicant had amended the plans on one occasion however, according to the correspondence contained in the bundle, those changes were insignificant and did not address the council's concerns with regard to the need to retain the existing dwelling and the bulk and scale of the proposed replacement building.
The council refused the application on 23 August 2011 for the following reasons:
(1) The overall bulk and scale of the proposed dual occupancy will detract from the significance and character of the proposed heritage conservation area for the locality.
(2) The two-storey form and appearance of the proposed dual occupancy is uncharacteristic of the locality.
(3) The shadows cast by the development fail to comply with clause 5.2 of Part C15 - Houses and Dual Occupancies Development Control Plan (Part C15 of the Ashfield DCP 2007).
(4) The proposed second dwelling exceeds the maximum floor area of 125 square metres.
(5) The existing dwelling makes a positive contribution to the locality so its proposed demolition is not supported.
(6) The proposal is not in the public interest.
The conciliation process explored the design concerns of the council and in an attempt to address the particular issues of height, bulk and scale, the applicant prepared further amended plans however, whilst addressing many of the council's contentions, the primary issue of retaining the building was not resolved and the conciliation conference was terminated.
The applicant was granted leave to rely on the amended plans and those plans are now before the Court however, it was agreed, prior to terminating the conference, that further changes should be made and those changes could be addressed by consent conditions in the event that the Court upheld the appeal.
At the conclusion of the conciliation conference, the council pressed two contentions, those being contentions 1 and 2 as detailed in the Statement of Facts and Contentions filed with the Court.
The planning controls
The site is zoned 2(a) Residential pursuant to the provisions of Ashfield Local Environmental Plan 1985 (the LEP) .
Clause 13 of the LEP applies to dual occupancy development and states:
(1) Subject to subclauses (2) and (3), a person may, with the consent of the Council, within Zone No 2 (a), 2 (b) or 2 (c):
(a) alter or add to a dwelling-house erected on an allotment so as to create 2 dwellings, or
(b) erect 2 attached dwellings on an allotment, or
(c) erect 2 dwelling-houses on an allotment, or
(d) erect a second dwelling-house in addition to one already erected on an allotment, or
(e) alter or add to a dwelling-house or to any other building erected on an allotment so as to create 2 dwelling-houses,
if, but only if, not more than 2 dwellings will be on the allotment as a result of the development being carried out.
(2) Development allowed by this clause may be carried out in a heritage conservation area within the meaning of Part 4 only if that development will result in two attached dwellings.
(3) The Council may refuse consent for any such development if it considers the proposal will have an adverse impact on the significance of any heritage conservation area or heritage item.
The application has been lodged in accordance with the provisions of clause 13(1)(b).
The site is not within a heritage conservation area. The council, on 4 April 2006, resolved to prepare a draft local environmental plan (the draft LEP) to create various new conservation areas and additional heritage items. Under the provisions of that draft plan, it is proposed that the site would be within a heritage conservation area (HCA) known as the Harland Estate Conservation Area. The council's decision to include the site within a HCA was made on consideration of a heritage review undertaken in 2004. That report entitled Ashfield Heritage Review of Properties zoned Residential 2(a) and some other properties Stage 5: Ashfield South - Final Report (the Irving Report) was prepared for the council by Robert Irving. The report forms part of the council's bundle, and provides details of the site and its heritage context. The report describes the cultural significance of the Harland Estate as being derived from the following factors:
(a) the long history of the area as a comparatively small subdivision, culminating in the present arrangement, which demonstrates significant phases of Ashfield's planning and architectural development over a period of about 120 years.
(b) The buildings and streetscapes of this area make a diverse yet unified and attractive whole. Within this harmonious area a wide range of architectural styles, forms, materials, textures, colours and details is evident.
(c) There is an attractive gentleness of residential scale.
(d) Despite modifications the buildings and streetscapes generally possess much originality and intactness.
The council has been unable to proceed on the making of the draft plan as the Director General of the Department of Planning (the department) has advised the council that he would not be prepared to issue a certificate pursuant to the provisions of the former s 65 of the Act to allow exhibition of the draft plan. The advice provided by the Director General, in correspondence dated 20 September 2006, was that the council may continue with the preparation of the draft LEP subject to it undertaking additional work on allocating dwelling targets for the Ashfield Council local government area (LGA) consistent with the department's sub-regional strategy work. The Director General's reasons for this work were that the implications of making the proposed conservation area might affect the delivery of the State Government's Metro and subregional strategy outcomes. In further correspondence dated 26 October 2006, the Director General advised that, prior to certification of the draft LEP, the council must demonstrate how strategic housing targets for the strategies are to be delivered for the Ashfield LGA and that all heritage LEPs should be consolidated into one document.
The Court was advised that, despite this correspondence being sent five years ago, the council had not progressed its draft LEP to a stage whereby certification could be obtained to allow its exhibition. It also confirmed that no change in the council's position with regard to the inclusion of the site within a HCA had occurred.
Part C15 - Houses and Dual Occupancies in Residential Zones of Ashfield DCP 2007 (the DCP) applies to the application. The DCP requires consideration of the context of the site and that a proposal provides a sympathetic building scale (one which takes its cues in terms of size, bulk, length, breadth, height and volume of a building or an element, in relation to neighbouring buildings, as well as in relation to the scale and character of the streetscape, which includes the scale of the predominant building styles).
Requirements for new houses are that they present a sympathetic relationship to their context, garages must be subordinate to the scale, form and style of the house and respect the scale and character of the streetscape.
Section 3 of the DCP provides requirements for dual occupancy dwellings and prefers that such development be attached and have the appearance of one house . Attached dual occupancies are mandatory in HCAs. Detached dwellings placed at the rear of the site are not permitted, other than "granny flats" which are single storey and no larger than 40 sq m. Clause 11 restricts the maximum gross floor area of a second dwelling to 125 sq m. Diagram No 5 provides an example of a semi-attached dual occupancy site layout. It is noted that the application is consistent with that diagram with the exception of the driveway locations, which, in this instance, are proposed from the secondary frontage rather than the main frontage. The DCP also includes other quantitative controls and it is agreed that they are met.
The issues
The council's remaining contentions are:
(1) The existing period cottage dwelling should not be demolished due to its distinctive, positive contribution to the locality.
(2) The proposed development should be refused as the two-storey form and appearance of the proposed dual occupancy is uncharacteristic of the locality.
The evidence
A view of the site was undertaken during the initial s34 conference and evidence heard from one objector, a resident of Service Avenue. The concerns of the resident are consistent with the council's contentions.
Expert evidence was heard from Mr Robert Moore (heritage) and Mr Philip North (planning) for the council and Mr B Goldsmith (town planning) for the applicant.
The experts agree that the site has a potential statutory maximum floor space ratio (FSR) of 0.75:1, two-storey height limit (cl 12 of the LEP), that attached dual occupancies are preferred and are permitted on the site and within a HCA.
Demolition
Despite the planning controls the council's experts say that the preferred form of development would be to retain the existing dwelling and construct a second dwelling at the rear of the site.
Mr Moore says that the existing dwelling should not be demolished on the grounds that it is contributory to the streetscape values and heritage significance of a proposed HCA, the Harland Estate Conservation Area and that a replacement building will not make the distinctive contribution to the area that the existing house, by virtue of its history and character, makes to the area. He says it is important to retain the character of the area, having a diversity of buildings, and the existing building, being a Victorian cottage, makes a contribution to that character, particularly due to its earlier and simpler built form.
Mr Moore says the character is defined by the scale and nature of the houses supported by the architectural interest and street tree planting and the essentially single storey residential scale with few intrusions.
It is Mr Moore's view that the existing cottage can be conserved, repaired and retained to serve as a contemporary home and further accommodation, including a separate, detached and suitably scaled dwelling to be introduced to the rear yard addressing the secondary frontage however acknowledges that such a proposal is unlikely to meet the applicant's aim of 2 x 3 bedroom plus study dwellings. He concludes that the issue of demolition is the point of division between the parties and that it would be possible that an amended design for development would offer a better replacement building than the current proposal.
At the termination of the conciliation conference, it was agreed that the final design, together with additional changes discussed below, would be an acceptable outcome.
Mr North shares similar views to those of Mr Moore and considers the existing dwelling makes a positive contribution to the streetscape and is sympathetic to its context and for that reason he supports its retention. He also considers that alterations and additions or the provision of a dual occupancy development to the rear could be undertaken and that if the existing dwelling was to be demolished, the design of any replacement building should be sympathetic to the context and have a high standard of architectural composition.
Mr Goldsmith says that there are no heritage grounds that require the retention of the existing building, noting that the site is not a heritage item or within a HCA. He accepts that the council has sought to include the site within a HCA however says that there is no conservation area "environmental planning instrument" nor public notification of a draft LEP to effect such a planning proposal and cites the advice from the Director General that he says, suggests the council must convince the government that the HCA proposals which cover extensive areas will facilitate achievement of housing targets and concludes that the draft LEP is neither imminent or certain and should be given little weight.
Proposed building, design and character
With regard to the plans before the Court, Revision 5, (Exhibit A) Mr Moore says the proposed building would present as a new building that highly references the later 20th century buildings in the locality and is larger to achieve the applicant's desire for accommodation and this makes its scale excessive. Mr North considered its height and general form to still be excessive and suggested lowering of the walls and ridge height, changes to the front elevation and dormer windows. Mr Moore recommended other changes, those being to the rear elevation and rear gable windows. Those changes were discussed during the final conciliation conference and have been agreed between the parties and draft consent conditions provided to address the amendments required in the event that consent is granted.
Conclusion and findings
It is clear that the council intends to include the site within a HCA however, it is not clear whether it will succeed in finalisation of that intent given the directions of the Department of Planning with regard to housing targets. There is no draft plan to which I can reference to determine the likely affect of any planning controls and therefore, I can give little weight to the council's resolution to prepare a draft LEP. It is not a matter that I am obliged to consider pursuant to s79C(1)(a)(ii) of the Act.
Even if the site is ultimately included in a HCA, the evidence before me is that the dwelling would have no greater significance than a contributory item. The ranking given to the property in the Irving Report is 2 and that is described as a building which contributes to the character of the area but whose significance has been reduced by loss of original materials and/or detail, by unsympathetic additions or by inappropriate changes to decorative treatment. The stated objectives are to reconstruct original features and/or remove unsympathetic additions, so as to merit a ranking of 1 or as an individual heritage item. The report references earlier reviews of the area and the site in particular and describes the property as "indifferent".
What is also clear is that Service Avenue is an area with a distinct character, primarily single-storey in nature and, as noted in the Irving Report, the buildings and streetscapes make a diverse yet unified and attractive whole despite a wide range of architectural styles, forms, materials, textures, colours and details being evident. The council has also demonstrated the consistent approach taken to development within the vicinity of the site to ensure that the important elements of that streetscape are maintained.
As the dwelling is not currently included within a HCA, and there is no certainty as to whether such status will be achieved, I do not consider it to be appropriate to require the retention of the building provided that I am satisfied that the replacement building will fit within the character of the streetscape.
Regardless of whether the site is ultimately included within a HCA, I am satisfied that, in addition to those matters to be considered in a merit assessment under s 79C of the Act, the strategic planning direction and desired future character for the area are also important considerations, particularly as they have been the subject of public consultation. Such consideration would be in the public interest and consistent with the decision of Lloyd J in Carstens v Pittwater Council [1999] NSWLEC 249 where a [25] his Honour states:
I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters...
I note that the parties agree that all of the appropriate development controls, apart from that which requires the second dwelling to have a maximum floor area of 125 sq m, are met by the amended proposal. It is the council's preference that dual occupancy development comprises attached dwellings and, in the context of Service Avenue and the controls contained within the DCP, I consider that the symmetry of the development is an important factor and for that reason, it would be appropriate to vary the floor area control contained within the DCP.
The parties agree, subject to those further amendments to further reduce the height, bulk and scale of the building as resolved during the conciliation conference, that the built form of the proposal would be acceptable. I concur. This is particularly due to the fact that the garaging is provided off the secondary street, which results in a presentation to Service Avenue of appropriate character, streetscape, scale and width without the need to interrupt the context of the building with driveways. The further reduction in the height of the building is also important, particularly on the prominent corner site. This ensures that the new building presents a sympathetic relationship to its content and that the garages are subordinate to the scale, form and style of the house and respect the character of the streetscape in accordance with the objectives of the DCP.
Having considered the merits of the application and the evidence provided, I am satisfied that the development, in the final form agreed at the conclusion of the conciliation conference, is acceptable and consistent with the council's planning controls.
Orders
(1) The appeal is upheld
(2) Development Application No 10.2011.078 for the demolition of an existing dwelling house and the construction of a two-storey attached dual occupancy and a detached garage for two vehicles at the rear of the site at No 13 Service Avenue, Ashfield is approved subject to the conditions in Annexure A.
(3) The exhibits, other than Exhibit A, are returned.
Sue Morris
Commissioner of the Court
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Decision last updated: 16 December 2011
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