Rothwell v Hunters Hill Council - [2012] NSWLEC 1229

Land and Environment Court

New South Wales

Medium Neutral Citation: Rothwell and Anor v Hunters Hill Council [2012] NSWLEC 1229
Hearing dates: 16-17 July 2012
Decision date: 17 August 2012
Jurisdiction: Class 1
Before: O'Neill C
Decision:
1. The appeal is upheld.
2. Development Application No. 2011-1140 for alterations and additions to the existing cottage at 2 Gladstone Avenue, Hunters Hill is approved, subject to the conditions in Annexure "A".
3. The exhibits, other than exhibit 1, are returned.

Catchwords: DEVELOPMENT APPLICATION: Alterations and additions to a heritage item; SEPP 1 objection to the garden area development control; contaminated land.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827
Category: Principal judgment
Parties: Mr Iain Rothwell and Ms Kylie Odell (Applicants)
Hunters Hill Council (Respondent)
Representation: Counsel
Mr N. Eastman (Barrister) (Applicant)
Mr M. Staunton (Barrister) (Respondent)
Solicitors
Gadens Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 10420 of 2012

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act1979 against the deemed refusal of Development Application No. 2011-1140 (the application) by Hunters Hill Council (the Council) for alterations and additions to an existing cottage at 2 Gladstone Avenue, Hunters Hill (the site).

A s 34AA conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of the immediate area and the adjoining property to the north. As no agreement was reached during the conciliation conference, despite genuine efforts by the parties, the conciliation conference was terminated and the matter proceeded to a hearing in accordance with the provisions of s 34AA(2)(b)(i) of the Land and Environment Court Act 1979.

Issues

Council's contentions in the matter can be summarised as:

The proposal will have an adverse impact upon the heritage significance of the heritage item, the heritage conservation area (HCA), the foreshore scenic protection area and the streetscape;
The breach of the garden area development standard results in a proposal that is unacceptable in terms of bulk and scale;
The zero setback of the garage and studio structure on the western boundary eliminates any possibility of providing planting along the western boundary to reduce the visual impact of the structure;
The proposal will have an unacceptable impact on the existing views from 2A Gladstone Avenue; and
Further information is required regarding the contamination of the site and the proposed method of rectification before the consent authority can reach the requisite standard of satisfaction pursuant to clause 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55).

A number of amendments were made to the proposal during the conciliation conference and in response to the joint reports of the experts, including:

The reduction of the height of the proposed western gable ridge of the cottage and the height of the pavilion to the rear of the cottage, by 600 mm (from RL 36.03 to RL35.43), in order to preserve a significant portion of the harbour views from the lower level of 2A Gladstone Avenue and for the proposed rear gable to appear suitably deferential to the original form of the roof;
The reduction of the level of the deck and pool by 1.2 m (from RL31.25 to RL 30.05) so that the southern wall of the pool is a height of approximately 1.2 m above existing ground level; and
The reduction of the floor level of the garage and floor to ceiling height of the garage in order to reduce the overall height of the garage/rumpus pavilion by 1.49 m (from RL34.84 to RL33.35)

The parties consented to the admission of evidence, given during the conciliation conference, in the hearing, pursuant to s 34(12) LEC Act.

The following issues remain in dispute, following the conciliation conference:

The level of the swimming pool and deck at RL30.05 with a rainwater tank below the pool. The Council contends that the swimming pool and deck should not project more than 150 mm above existing ground level, which would make the deck and pool level RL29.0 and that the rainwater tank should be relocated.
The height and nil setback from the western boundary of the two storey garage pavilion. Council contends that the garage pavilion should be a single storey structure and setback 2 m from the western boundary.
The proposed eastern dormer window. The Council contends that the eastern dormer window, on the street front elevation of the cottage, should be deleted on the basis of its impact on the heritage significance of the cottage and replaced with a dormer window on the northern elevation.
The proposed landscape plan. Council contends that the proposed trees will, upon maturity, obscure the harbour views enjoyed from dwellings to the north of the site.

The Council tendered without prejudice conditions of consent (exhibit 7), including deferred commencement conditions, requiring the submission of amended architectural plans, to amend the proposal in accordance with agreed amendments made during the conciliation conference and Council's contentions described in paragraph 6.

The site and its context

2 Gladstone Avenue, Hunters Hill is located on the north-western corner of Gladstone Avenue and Nelson Parade. The site has a frontage of 14.9 m to the unmade portion of Gladstone Avenue and a long frontage of 43.8 m to Nelson Parade, with a site area of 676.6 m2. The sandstone cottage on the site, 'Gledswood', is orientated towards Gladstone Avenue.

The northern boundary of the site consists of a substantial sandstone rock face and stone retaining walls. The top of the stone retaining wall on the adjacent property to the north, 2A Gladstone Avenue, is approximately 4.5 m above the ground level of 2 Gladstone Avenue. 2A Gladstone Avenue contains a contemporary two storey dwelling. The living areas are located on the upper level opening onto a balcony adjacent to the southern boundary, overlooking 2 Gladstone Avenue and the harbour beyond. The bedrooms are located on the lower level. There is a living area located on a mezzanine level above the upper floor.

10 Nelson Parade adjoins the site to the west. It is a two and three storey dwelling. The dwelling has a garage and foyer located at the street level and the dwelling is perched above the sandstone rock face, with two levels accessed via what appears to be a lift, both with balconies on the southern side overlooking the harbour and 2 Gladstone Avenue. The lower level is approximately 8 m above the ground level of 2 Gladstone Avenue.

The site is an unusual configuration in the context of Nelson Parade, as the cottage is built at ground level with a slight embankment to Nelson Parade and orientates to the Gladstone Avenue road reserve, unlike all the other houses on the high side of Nelson Parade, which generally consists of large dwellings located above the street level and orientated to the south, in order to take advantage of the harbour views.

The site is enclosed by the sandstone rock face to the north of the site and the dwellings to the north and west of the site are situated on top of the rock face and overlook and overshadow the site.

The proposal

The proposal is to retain the existing cottage and construct a main bedroom and ensuite within the existing roof space, by inserting dormers on the eastern and northern sides of the existing roof and by constructing a new gable to the west. The rear lean-to addition to the cottage is to be demolished. The living areas are to be located in a new two storey pavilion to the rear of the cottage with a glass clad link between the cottage and the proposed pavilion.

At the western end of the site, a two storey pavilion is proposed to house a double garage and store area at street level and a guest/rumpus area on the upper floor. Between the two pavilions is a raised deck and pool, with a corridor below connecting the garage to the living areas pavilion. A 3000L water tank is located below the pool.

The planning framework

The site is located with the Residential 2(a2) zone pursuant to Hunters Hill Local Environmental Plan No 1 (LEP No 1) and the proposal is permissible with consent.

2 Gladstone Avenue, Hunters Hill is listed as a local heritage item, Item No. 172, Schedule 6, LEP No 1, identified as 'Gledswood', formerly 'The Rook', constructed in 1912 and the sandstone wall along the southern boundary of the site is also listed as a local heritage item, Item No. 296, Schedule 6, LEP No 1. The site is within the Hunters Hill Conservation Area and the Foreshore Scenic Protection Area. The site is within the vicinity of local heritage items, including Kelly's Bush and dwellings at the northern end of Gladstone Avenue, numbers 1, 3, 4 and 5.

The aims and objectives of LEP No 1 include the following:

(a) conserving the environmental heritage significance, the foreshore and riverscape, the townscape quality and tree covered environment of the Municipality through regulation of the use and development of land, buildings and structures,

(b) retaining specific evidence of the thematic development of the environmental heritage of the Municipality through conservation of items of environmental heritage,

(b3) ensuring that new development is undertaken in a manner that is sympathetic to, and does not detract from, the heritage significance of the items and their settings, as well as streetscapes and landscapes and the distinctive character that they impart to the land to which this plan applies

Clause 15 of LEP No 1, Height of buildings, includes:

(1) In this clause, ground level, in relation to the carrying out of development on a site, means the level of the site immediately before the development is carried out.

(2) A person shall not erect a building on a site within Zone No 2 (a1), 2 (a2), 2 (a3), 2 (b), 2 (c), or 5 (a):

(a) containing more than 2 storeys, or

(b) having a height greater than 7.2 metres measured vertically from ground level to the uppermost ceiling, or both.

Clause 16A of LEP No 1, Garden area, states:

(1) In this clause, garden area means any area within an allotment of land which has not been built on and which, in the opinion of the council, is designed, constructed or adapted for outdoor living or outdoor recreation but does not include decks, balconies or swimming pools (other than swimming pools with a water surface area of less than 40 square metres and which don't project more than 150 mm above ground level), driveways, parking areas, drying yards or other service areas.

(2) The council shall not grant consent to the erection or use of a building on an allotment of land within Zone No 2 (a1), 2 (a2) or 2 (a3) unless the allotment has a garden area equal to or greater than 50% of the area of the allotment.

(3) Notwithstanding subclause (2), the council shall not grant consent to the erection or use of a building on an allotment of land within a zone referred to in that subclause which has a frontage to the Lane Cove River or the Parramatta River unless the allotment has a garden area equal to or greater than 60% of the area of the allotment.

Clause 19 of LEP No 1, Items of environmental heritage, includes:

(1) A person shall not, in respect of a building, work, relic, tree or place that is an item of the environmental heritage:

(a) demolish or alter the building or work,

(e) erect a building on or subdivide land on which the building, work or relic is situated or that comprises that place, except with the consent of the council.

(2) The council shall not grant consent under the Act pursuant to subclause (1) in respect of an item of the environmental heritage, unless it has made an assessment of:

(a) the significance of the item as an item of the environmental heritage of the Municipality of Hunter's Hill,

(b) the extent to which the carrying out of development in accordance with the consent would affect the heritage significance of the item and its site,

(c) whether the setting of the item and, in particular, whether any stylistic, horticultural or archaeological features of the setting, should be retained, and

(4) The council shall not grant consent under the Act pursuant to subclause (1) to the alteration of a building that is an item of the environmental heritage, unless it has made an assessment of:

(a) the colour, texture, style, size and type of finish of any materials to be used on the exterior of the building and the effect which the use of those materials will have on the appearance of the exterior of the building and of any other building in its vicinity,

(b) the style, size, proportion and position of openings for any windows and doors which will result from or be affected by, the carrying out of the development

The site is subject to the provisions of Development Control Plan No 15 Residential Development (DCP 15). Section 3.1 of DCP 15, Planning Policy includes the following objectives for all development:

a. Development should be compatible with the landscape character of the area. Generally the landscape character of Hunters Hill is encapsulated in the "tree" whether indigenous, native or exotic. Hunter's Hill Council is committed to protecting and enhancing the area's landscape character and natural environment.

b. Development, particularly when viewed from the street or other

public place should be compatible with the character and scale of

any existing building to be retained on the site and residential

development in the immediate vicinity.

c. Development, particularly when viewed from public reserves,

National Parks, waterways or across valleys should not be obtrusive in or upon the natural landscape.

d. In areas with significant stylistic/architectural associations and

identity, additions and new development should be designed in

sympathy with their surrounds.

Design parameters for all development include, at clause 3.2 of DCP 15, the following:

a. Development should ensure that the size and shape of development, the extent of cut and fill, the type and colour of building materials, the design of roofs (in terms of materials, colour, pitch, etc) and the amount and type of landscaping, are:

(i) Compatible with the character and scale of surrounding

residential development; and

(ii) Do not intrude or otherwise impact upon the natural

landscape, particularly on ridge top locations and adjoining

public places.

b. Each property should provide its share of appropriate vegetative

cover, as well as protection and retention of native vegetation and

wildlife habitat on site. It should be noted that street tree planting

(eg. on nature strips) is controlled by Council. Applicants should not seek to rely on landscaping in Council's reserve or on adjacent

properties to screen adverse visual impact of development sites.

Clause 3.3 of DCP 15 includes the following desired design elements for development:

a. New residential development should reflect the scale, bulk and

character of development in the vicinity;

b. Architectural relief and modulation of facades to avoid a bulky

appearance;

c. The design of buildings should attempt to break up long lines of

walls through variations in elevations to provide visual interest to

buildings and opportunities for the provision of landscaping to

minimise the visual impact of large expanses of walls;

d. The roof of the building should be designed so it does not unduly increase the bulk of the buildings. Attention should be paid to materials, colour and roof pitch. Only under exceptional

circumstances will flat roof buildings be considered;

e. There should be architectural unity in the design of alterations and/or additions to existing dwellings/dwelling-houses and wherever possible external finishes of building work should match and be in character with the existing building/s on the site (exemptions may apply to heritage buildings);

The objectives for the Foreshore Scenic Protection Area, at clause 5.2 of DCP 15, includes:

a. To encourage residential development that ensures dwelling form, including alterations and additions, that do not degrade the amenity of the surrounding residents or the visual quality of Hunter's Hill particularly when viewed from the waterway;

c. To ensure that dwellings be designed with regard to the site

conditions, to minimise the impact on the landform and visual

amenity;

Design parameters for development in the Foreshore Scenic Protection Area, include, at clause 5.3, the following:

a. Proposed development within the Foreshore Scenic Protection Area should be designed to blend with the character of the setting, which in most locations is established as buildings within a mature

landscape of relatively dense trees and shrubs.

b. Careful attention should be given to controlling building mass by the creation of smaller scale forms within the whole and exploiting

effects of light and shade. Overall bulk and scale, materials and

colours should not stand out from the predominantly landscaped

setting.

c. Existing tree canopy cover, whether indigenous or exotic species, should be maintained and strengthened with appropriate new planting.

The objectives for front, side and rear setbacks, at clause 7.2.1 of DCP 15, include:

a. To ensure that setbacks of new dwellings and alterations and

extensions to existing dwellings respect the characteristic pattern of setbacks in the locality and in particular conserve the identity of the Municipality established by its townscape of pre-1930s buildings.

b. To maintain the garden space between buildings which is part of the existing character of the Municipality, and to minimise the adverse visual impact on adjacent and adjoining properties.

e. To preserve and enhance the streetscape.

Clause 7.2.3 of DCP 15 states that the distance between any part of the building and the side boundaries of the site shall be not less than 1.5 m. Concessions are permitted to single storey structures, carports, garages etc, subject to satisfying the objectives of the clause.

Clause 7.2.5 of DCP 15 provides exceptions to the setback provisions and includes the following:

Council may permit buildings to be erected within the calculated boundary setback area, where it can be demonstrated that the objectives of the setback controls, particularly privacy and sunshine can be achieved without strict adherence to the standards.

However, in considering such encroachments, the applicant must demonstrate to Council that the adjoining properties will not be unduly adversely affected.

Clause 7.3.1 of DCP 15 includes the following objectives for the garden area:

a. To conserve the character of the Municipality derived from detached houses set in and separated by individual gardens, by establishing a minimum proportion of garden area per allotment.

b. To retain, protect and augment the tree-covered environment for

which the Municipality is noted.

c. To ensure that gardens are useful, accessible and have adequate sunlight and privacy.

d. To ensure that new buildings respect rather than alter the existing steep sandstone topography for which the Municipality is noted.

e. To protect the existing drainage system from increased stormwater run off.

Clause 7.3.3 of DCP 15 provides specific provisions for the garden area, including that a building shall not be erected on any allotment of land within a residential zone unless it has a garden area equal to or greater than 50% of the area of the allotment. Garden areas having a dimension of less than 2 m shall not be included in the garden area calculation. Garden area is defined as:

any area within an allotment of land which has not been built on and which, in the opinion of the council, is designed, constructed or adapted for outdoor living or outdoor recreation, but does not include decks, balconies or swimming pools (other than swimming pools with a water surface area of less than 40 square metres and which don't project more than 150 mm above ground level), driveways, parking areas, drying yards or other service areas

Clause 7.3.3 further qualifies the interpretation of garden area by stating that the definition of terraces, decks and verandahs excludes such structures which are less than one meter above natural ground level and which are unroofed (other than open pergolas).

Clause 7.3.4 requires that at least two thirds of the garden area shall be a planted area and shall be landscaped with planting, gardens, lawns, shrubs and endemic trees and shall be free from any hard surface. Gardens are to provide residential amenity by being accessible to occupants, reasonably private and should be provided with at least 4 hours of sunlight between 9 am and 3 pm on the winter solstice.

Clause 8.5.2 of DCP 15 provides principles for the design of garages and carport, including that garages should be subservient to the scale, form, materials and colours of the house.

Public Submissions

A planner representing the resident objector of the adjoining 2A Gladstone Avenue gave evidence outside 2A Gladstone Ave and the parties and their experts viewed the site from the living areas and bedrooms of 2A Gladstone Avenue. The planner stated that the proposal would obscure the harbour views enjoyed from the bedrooms on the lower level of the property.

The resident objector, from the adjoining property to the west of the site at 10 Nelson Parade, gave evidence outside his house. He objects to the nil setback of the garage pavilion adjacent to the western boundary.

Evidence

Expert evidence was provided by Mr Brian McDonald (planning) and Mr Greg Patch (heritage) on behalf of the Council. Expert evidence was provided by Mr Andrew Darroch (planning) and Mr Stephen Davies (heritage) on behalf of the applicant.

Height of the swimming pool and deck

Evidence

The planning experts disagree on the extent of the non-compliance with the garden area development standard of 50% of the site area. According to Mr McDonald, the proposed garden area is 31.6% and according to Mr Darroch, it is 36.2%. The planning experts disagree as to whether the areas shown as planting under the raised decks should be included in the garden area calculation. According to Mr McDonald, the raised deck areas should not be included in the garden area calculation because decks are excluded from the definition of garden area. Mr Darroch says that hard paved surfaces are included in the garden area calculation and consequently, decks should not be excluded as they also provide areas for outdoor recreation. Mr Darroch suggests that the definition intended to exclude decks with roofs over and not decking with gardens below.

According to Mr McDonald, the Council is trying to stop the proliferation of large buildings without adequate garden settings.

Mr Darroch notes that the pool is excluded from the garden area as it is elevated more than 150 mm above ground level and had it been at ground level, it would have been included in the garden area as the area of the pool is less than 40m2, as required by the development standard.

The Council contends that the trafficable southern side of the pool will require a 1 m high pool fence, which added to the southern elevation of the pool edge 1.2 m above ground level, will further obscure views of the sandstone rock face on the northern boundary. The applicant contends that the southern side of the pool is not trafficable and will not require a pool fence at the deck and pool level.

Findings

The applicant proposes, by their version of deferred commencement condition 1(f), that the pool and deck area be at RL30.05. The effect of the height of the pool and deck above ground is non-compliance with the development standard for garden area. An objection pursuant to State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was submitted with the application, to demonstrate that compliance with the development standard is unreasonable or unnecessary.

If the SEPP 1 objections to the development standards are not well founded, then the application must be refused. The most commonly invoked way to establish that compliance with the development standard is unreasonable or unnecessary is because the objectives of the development standard are achieved, notwithstanding non-compliance with the standard, as found in the judgment of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, set out at par 42. The Court must be satisfied of three matters before it can uphold the SEPP 1 objection and then consider the merits of the application. The matters are:

The Court must be satisfied that the objection is well founded (clause 7 of SEPP 1);
The Court must be of the opinion that granting consent to the development application is consistent with the aims and objectives of the SEPP 1 policy, as set out in clause 3 (clause 7 of SEPP 1). These are to provide flexibility in the application of planning controls, operating by virtue of development standards, in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. The objects in s 5 (a) (i) and (ii) are to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

The Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection. These are:

(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument.

The SEPP 1 objection was prepared by Mr Darroch. The SEPP 1 objection for garden area addresses the objectives for garden area in clause 7.3.1 of DCP 15. The SEPP 1 objection states that the swimming pool and deck have been raised above ground level in order to maximise solar access to the pool area, as the dwelling at 2A Gladstone Avenue overshadows the site. Had the pool been located at ground level, the area of the pool would have contributed to the garden area calculation, as it complies with the 40m2 maximum pool size. In addition, the landscaped area of the adjoining road reserve serves as a setting to the dwelling.

There are no specific objectives for the garden area control at clause 16A(3) of LEP 1998 and in the absence of objectives, the experts adopted the objectives for garden area in clause 7.3.1 of DCP 15 as being the appropriate objectives for the development standard and I agree with this approach. Based on the objectives in clause 7.3.1, the purpose of the garden area development standard is to provide a garden setting for dwellings by limiting the built upon area of the site; to provide soft landscaping for the absorption of water; to maintain the tree-covered environment of Hunters Hill and to ensure that the steep sandstone topography of the municipality is respected.

This site is significantly constrained by the substantial sandstone rock face and stone retaining walls along its northern boundary and the two adjoining properties, perched above the rock face and high above the site, overshadowing and overlooking the private garden area of 2 Gladstone Avenue. The unique nature and configuration of this site is not anticipated by the development standards and strict compliance with the numerical garden area control would be unreasonable. Raising the level of the deck and pool approximately 1.2 m above the existing ground level in order to provide adequate solar access to the outdoor recreation area is an acceptable trade off and will improve the amenity of the outdoor recreation area. The proposal maintains a soft landscaped area along the northern side of the site and under part of the decking.

When tested against the agreed objectives of the development standard, I am satisfied that the proposal provides a garden setting for the dwelling and a usable area for outdoor recreation, whilst respecting the steep sandstone topography of the area and consequently the SEPP 1 objection is well founded.

The garage pavilion's height and nil setback from the western boundary

Evidence

The experts agree that given the unusual configuration of the site, where the rear boundary of 2 Gladstone Avenue is part of the side boundary of 10 Nelson Parade and runs perpendicular to the Nelson Parade street boundary, it would be unreasonable to impose the 6 m rear setback control of clause 7.2.4 of DCP 15 on the western boundary setback.

The experts agree that the nil setback of the garage pavilion on the western boundary has no negative impact on 10 Nelson Parade, as the adjoining dwelling is elevated high above the street level and only the garage and entry foyer are located at street level.

In Mr McDonald's opinion, the garage pavilion should be reduced to a single level and in Mr Darroch's opinion, the two storey pavilion is acceptable. The height of the garage pavilion was reduced by 1.49 m during the conciliation conference, from RL34.84 to RL33.35. Mr McDonald says that a two storey garage pavilion should have a setback from the western boundary of 2 m.

The Council contends that the two storey form of the garage pavilion competes with the single storey sandstone cottage and will have an adverse affect on the garden setting of the heritage item.

Findings

Clause 7.2.5 provides exceptions to the setback provisions, where it can be demonstrated that the objectives of the setback controls, particularly privacy and sunshine can be achieved, without strict adherence to the standards. The applicant must demonstrate that the adjoining properties will not be unduly affected.

The objectives of the setback controls are to ensure that new dwellings and alterations to existing dwellings respect the characteristic pattern of setback in the locality, particularly the identity established by the pre-1930s buildings; to maintain garden space between buildings; to minimise adverse visual impacts on adjacent properties and to preserve and enhance the streetscape.

I accept the evidence of the planning experts that the nil setback of the garage pavilion to the western boundary does not impact on the amenity of 10 Nelson Parade, because the lower level of the dwelling is elevated approximately 8 m above Nelson Parade and 3 m above the proposed height of the garage pavilion.

I am satisfied that the nil setback of the garage pavilion complies with the objectives of the setback controls and is appropriate in the circumstances of this constrained site and the elevated levels of the adjoining dwelling at 10 Nelson Parade.

The height of the garage pavilion has been reduced as much as possible, while still maintaining the two levels. The upper level of the garage pavilion will provide some privacy for the pool and deck area from overlooking from the terraces on the southern and eastern elevations of 10 Nelson Parade.

I am satisfied that the proposal does not compete with the original cottage and will not detrimentally impact on the identified heritage significance of the cottage 'Gledswood' or the stone wall on the southern boundary of the site. The 'pavilion style' of addition to a heritage listed dwelling is an accepted and respectful way to add accommodation and allow the cottage to continue to be read in its early form as a cottage in a garden setting, with a contemporary and suitably scaled addition at the rear.

Dormer windows

Evidence

The heritage experts agree that the principal frontage of the cottage is to the Gladstone Avenue road reserve, to the east and that the eastern elevation is the most intact elevation.

The experts agree that the dormer windows on the main roof of the cottage are to be detailed to ensure they have the correct fit to the roof form and that they will be eye-lid dormers with a triple sash.

According to Mr Davies, there are precedents for front dormer windows and that the dormer will not diminish the significance of the eastern presentation of the cottage and that the dormer on the eastern elevation provides greater amenity to the main bedroom than the alternative location proposed by Mr Patch and Mr McDonald on the northern elevation.

Findings

I agree with Council that a dormer on the eastern elevation of the cottage will diminish the significance of the principal elevation of the cottage to the Gladstone Avenue road reserve.

The dormer windows are to be located in the side elevations of the cottage roof, which are the northern and southern elevations.

Landscape plan

Evidence

The landscape proposal includes Bambusa textiles var gracilis (bamboo) and a Tristaniopsis laurina "Luscious" at the rear of the site. The Council contends that these trees will grow to a height that will obscure the harbour views enjoyed by properties to the north of the site.

The Council seeks to limit the height of proposed plantings to ensure that the mature canopies of the trees do not take away the harbour views enjoyed by the properties to the rear and Mr McDonald agrees with this position.

Mr Darroch wants the bamboo and the taller canopy tree, in order to provide visual privacy to the site.

Findings

It is possible to have tall trees on the site with canopies that will contribute to the landscape character of Hunters Hill, as envisaged by LEP No 1 and DCP 15, without obscuring the harbour views of the properties to the north of the site, because of the substantial level change between the site and the properties to the north. The parties agree that the amended rear gable ridge height of RL35.43 will retain a significant proportion of the harbour views from the bedrooms on the lower level of 2A Gladstone Avenue. If the top of the tree canopy grew to a maximum height to match the proposed rear gable ridge of RL35.43, the trees would be 6.63 m above the existing ground level.

I am satisfied that substituting the proposed bamboo and canopy tree in the rear yard for trees which will grow to a maximum height of 5 m would fulfil both Mr Darroch's requirement of providing some visual privacy to the rear garden of 2 Gladstone Avenue and Council's requirement that the trees not obscure harbour views enjoyed from the properties to the north of the site.

Contamination

Evidence

The Council contends that the applicant has not provided sufficient information to enable the Court to reach the state of satisfaction required by clause 7(1)(c) of State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) and in the absence of that information the consent authority must not grant consent. The Council contends that a Remediation Action Plan (RAP) is required in order to assess the likely impacts of the proposed remediation.

The applicant's report, 'Preliminary Environmental Site Assessment' by JBS Environmental, dated October 2011 (Exhibit 2), finds that the site is contaminated by benzo(a)pyrene (B(a)P) (page 29). The contamination is located around borehole 4, at the front of the property (page 32). The report recommends two alternatives for the remediation of the land (summarised at page vii), as follows:

It is considered that the Site is suitable for the proposed residential land use, if B(a)P within fill material at sample location BH4 is removed, with subsequent validation clearance of soil surrounding the hotspot by an appropriately experienced consultant; and
Alternative to removal of the hotspot at sample location BH4 0-0.1m, an Environmental Management Plan (EMP) could be implemented during preparation of the Site for redevelopment, ensuring the area of contamination in the vicinity of sample location BH4 is covered with a physical barrier, reducing risk to occupants and construction workers during redevelopment of the site.

The applicant contends that the Court can condition the remediation of the land, as follows:

The site shall be remediated in accordance with the JBS Environmental Report by removing the contaminated material from the site and a site audit statement provided to the Council prior to the commencement of building works.

Findings

Clause 7(1)(c) of SEPP 55 states:

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

The issue of contamination is addressed by the JBS Environmental Report, which finds that the site is suitable for the proposed residential use and provides two options to satisfy the issue, either removal of the fill material containing B(a)P or covering the fill material with a physical barrier and subsequent validation of the clearance of soil surrounding the hotspot by an appropriately experienced consultant. I note that the conclusion of the report is relevantly, that the site is suitable for residential use. I am satisfied that a satisfactory outcome can be achieved by compliance with either one of the recommendations of the report and that it is appropriate for Council to provide a deferred commencement condition for the remediation of the site, based on one of the alternative recommendations and a requirement for a RAP to be assessed by Council.

Interim findings - amended plans and conditions

Interim findings were handed down on 8 August 2012 requiring amended architectural and landscape plans to be filed for consent by the Court, rather than leaving the changes to the proposal described by the deferred commencement conditions, as they left aspects of the design unresolved with the potential for further disputes between the parties.

The Council was directed to provide a deferred commencement condition for the remediation of the land, based on one of the alternative recommendations in the JBS Environmental report and a requirement for a RAP. I directed that this condition be a deferred commencement condition so that the development consent does not operate until the applicant has satisfied the Council that the land has been successfully remediated, pursuant to the provisions of clause 7(1)(c) of SEPP 55.

The applicant provided the amended architectural drawings and conditions of consent on 15 August 2012. The amendments to the proposal are as follows:

The architectural plans have been amended to show the height of the garage pavilion at RL33.35;
The architectural plans have been amended to show the swimming pool and deck at RL30.05, with a water storage tank beneath the swimming pool and a corridor connecting the garage to the dwelling beneath the deck;
The southern edge of the swimming pool has been designed as non-trafficable, so that a fence is not required on the southern side of the pool at the height of the deck and the proposal complies with the BCA;
The architectural plans have been amended to delete the dormer window on the eastern elevation of the cottage and it has been replaced with a dormer window to the northern elevation. The dormer windows on the main roof of the cottage are detailed to have the correct fit to the roof form and they are eye-lid dormers with a triple sash;
The landscape plan has been amended to reflect and accord with the changes to the architectural plans and to show pedestrian access to and around the site;
The landscape plan has been amended to delete the Bambusa textiles var gracilis and the Tristaniopsis laurina "Luscious" proposed for the rear of the site, so as to avoid the potential to obscure the views of the neighbour and replaced with another species which will not grow taller than 5 m;
A stormwater plan has been provided to show the location, level, capacity and operation of the rainwater tank and associated stormwater pipes;
The Council has provided a deferred commencement condition for the remediation of the site, based on one of the two alternative recommendations for remediation of the site in the JSB Environmental site assessment, dated October 2011 and a requirement for a Remediation Action Plan, to be assessed by Council.

Orders

The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2011-1140 for alterations and additions to the existing cottage at 2 Gladstone Avenue, Hunters Hill is approved, subject to the conditions in Annexure "A".

3. The exhibits, other than exhibit 1, are returned.

____________

Susan O'Neill

Commissioner of the Court

ANNEXURE A

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Decision last updated: 17 August 2012

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Citations

Rothwell v Hunters Hill Council [2012] NSWLEC 1229

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

2

Wehbe v Pittwater Council [2007] NSWLEC 827

Medium Neutral Citation:	Rothwell and Anor v Hunters Hill Council [2012] NSWLEC 1229
Hearing dates:	16-17 July 2012
Decision date:	17 August 2012
Jurisdiction:	Class 1
Before:	O'Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 2011-1140 for alterations and additions to the existing cottage at 2 Gladstone Avenue, Hunters Hill is approved, subject to the conditions in Annexure "A". 3. The exhibits, other than exhibit 1, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Alterations and additions to a heritage item; SEPP 1 objection to the garden area development control; contaminated land.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Mr Iain Rothwell and Ms Kylie Odell (Applicants) Hunters Hill Council (Respondent)
Representation:	Counsel Mr N. Eastman (Barrister) (Applicant) Mr M. Staunton (Barrister) (Respondent) Solicitors Gadens Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	10420 of 2012