Squillace Architects v Hunters Hill Council

[2004] NSWLEC 274

Land and Environment Court

of New South Wales

CITATION:	Squillace Architects v Hunters Hill Council [2004] NSWLEC 274
PARTIES:	APPLICANT Squillace Architects RESPONDENT Hunters Hill Council
FILE NUMBER(S):	11396 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- Demolition of existing dwellings- erection of a SEPP 5 development - heritage impact - streetscape - character of the area - privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 5
CASES CITED:
DATES OF HEARING:	29/04/2004
EX TEMPORE JUDGMENT DATE :	04/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister SOLICITORS - RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11396 of 2003 Brown C 30 April 2004

Squillace Architects
Applicant

v Hunters Hill Council
Respondent

Judgment

1 . This is an appeal against the refusal by Hunters Hill Council (the council) of Development Application 2002/1244 for the demolition of three existing dwellings and the erection of a housing development for older people or people with a disability at 35-39 Ryde Road, Hunters Hill (the subject site).

2 . The subject site consists of Lots 6, 7 and 8 in DP 9742. The lots are to be consolidated and will have a frontage of 36.57 m and a total area of 1,649.1 sq m.

3 . The dwellings located on the subject site are freestanding bungalow style dwellings built between 1920 and 1930. The character of the area consists mainly of similar dwellings to that on the subject site but with some older style residential flat buildings nearby. Figtree Park is located on the opposite side of Ryde Road.

4 . The subject site is zoned residential 2(a1) under the Hunters Hill Local Environmental Plan No.1 (the LEP). The proposed development is not permissible under the zoning except through the provisions of State Environmental Planning Policy 5 - Housing for Older People or People with a Disability (SEPP 5) . Although repealed at the time of the hearing SEPP 5 still applies through the transitional provisions of the new policy.

5 . The heritage provisions in cll 19 and 19A apply to the development application. The dwellings sought to be demolished are not identified heritage items but are within an identified conservation area. The subject site is also part of the historic Joubert subdivision that is listed as a heritage item in the LEP.

6 . The subject site is also located in the vicinity of a number of listed heritage items being the dwelling at 26 The Avenue, St Marks Anglican Church in Figtree Avenue and the dwelling at 24 The Avenue. These items are located adjoining or near the rear boundary of the subject site.

7 . Clause 19(2) of the LEP states that a consent shall not be granted unless an assessment has been made of the extent to which the development would affect the form of the historic subdivision. Clause 19(3) states that consent shall not be granted on land in the vicinity of a heritage item unless an assessment has been made on the effect of the heritage significance of the item and its setting. Clause 19A states that consent shall not be granted unless an assessment has been made of the effect on the conservation area.

8 . The provisions of SEPP 5 apply to the application. The relevant clauses are cl 14 in relation to floor space ratio and cl 25 in relation to neighbourhood amenity and streetscape.

9 . Sydney Regional Environmental Plan No. 22-Parramatta River also applies but was not pressed by the Council as the relevant requirements are addressed by other planning instruments.

10 . The Council filed a statement of issues containing five issues and a number of sub-issues. These can be conveniently grouped into the following main areas:

(1) should the existing dwelling be demolished?
(2) does the proposed development have an unacceptable impact on the conservation area, the heritage items in the vicinity, the historic Joubert subdivision and the streetscape and character in general?
(3) does the proposed development have an unacceptable impact on the amenity of adjoining properties?


11 . The question of whether the existing dwellings can be demolished centred on the heritage significance of the dwellings. A joint expert report was provided to the Court by Mr Steven Davies and Mr Peter Robinson for the applicant and Ms Sheridan Bourke for the Council. There was agreement that the three dwellings contribute to the significance of the conservation area. There was also agreement that the dwellings form part of an unbroken row of twentieth century cottages. However, there was little agreement beyond this.

12 . In the applicant’s case the demolition of the dwellings was, in part, supported by the generally poor state of the subject buildings and the likely change in the form of the dwellings through additional floor space, if upgraded. Both parties tendered engineering assessments of the dwellings with similar conclusions. Generally the reports identified structural failings but not significant enough to justify the demolition of the dwellings.

13 . Notwithstanding this Ms Bourke saw the dwellings as readily adaptable and conservable for contemporary residential use. In my view, the structural defects are matters that are a relevant consideration in assessing whether the dwellings should be demolished. However, the evidence presented to the Court on the structural integrity of the buildings could not substantiate the demolition of the dwellings for this reason alone. It is a matter that does however add some weight to the applicant’s case.

14 . In terms of heritage impact, the argument presented by the applicant’s experts was that the loss of the dwellings would have an impact on the conservation area but not to such an extent that would warrant the refusal of the application. The buildings that are to replace the existing dwellings were seen to properly address the character of the area, not dominate their surroundings in terms of scale, provide appropriate massing, be constructed of appropriate materials and conform to the setback and orientation of dwellings found nearby.

15 . In relation to the original subdivision pattern, the applicant’s experts argued that the proposed pattern of dwellings approximates the existing pattern of dwellings on the subject site. For this reason the perception of the original subdivision pattern is retained. The applicant’s experts also argued that the identified heritage item is both physically and historically incorrect as further subdivisions of the identified area have taken place after the identified 1881 subdivision.

16 . The argument presented by Ms Bourke and the residents was that the loss of the dwellings would have an unacceptable impact on the conservation area because the row of single storey dwellings would be interrupted by the proposed new dwellings. The different form of dwellings proposed would be visible and would detract from the integrity of the conservation area. While not being identified heritage items the existing dwellings are contributory buildings and are important in maintaining the significance of the conservation area.

17 . In terms of the subdivision Ms Bourke maintains that the redevelopment will destroy the historic subdivision through the loss of dividing fences, garden boundary plantings and the subdivision pattern of narrow, regular frontages. Ms Bourke acknowledges the matters raised by the applicant’s experts on the possible inaccuracy of the heritage listing but maintains the overall historical importance of the subdivision.

18 . In addressing this important issue it must be remembered that there is no requirement that prohibits the demolition of dwellings within a conservation area or even identified heritage items. The tests in the LEP simply require an assessment to be made of the effect of the proposed development on the conservation area or the heritage item, in this case the historic subdivision. A similar provision exists in cl 19 of SEPP 5.

19 . In balancing the competing arguments and with the benefit of the extensive view of the subject site and surrounding areas I prefer the evidence of Mr Davies and Mr Robinson. The proposed dwellings at the Ryde Road frontage adopt a sympathetic form to the surrounding traditional dwellings. While two storeys in height compared to the adjoining single storey dwellings, the design in my view succeeds in maintaining some sympathy with the adjoining dwellings by cutting the dwellings into the site, maintaining a generally consistent setback and using design elements that are drawn from the surrounding historic dwellings. While their presence will be noticeable I am not convinced that their existence will have any significant impact on the conservation area.

20 . Similarly, I accept that the proposal will not have a significant impact on the historic subdivision pattern. The placement of the three dwellings in similar locations to the existing dwellings maintains an acceptable link to the previous subdivision when viewed from Ryde Road even if Ms Bourke’s higher test of significance (i.e., assuming the LEP is accurate) is adopted.

21 . I also accept that the perception gained from the street that the original subdivision is maintained adequately compensates for the theoretical change to the boundaries.

22 . In consideration of the requirement in cll 19(2) and 19A(2), I accept that the proposed development will not have an unacceptable impact on the conservation area and the heritage item. Similarly, I accept that the proposal demonstrates adequate regard has been given to neighbourhood amenity and streetscape as required by cl 25(a) of SEPP 5.

23 . In terms of the impact of the proposed development on the heritage items in the vicinity Ms Bourke states that the proposal will have an adverse impact through changes to the density and the historical subdivision pattern. Mr Davies comes to the opposite conclusion and states that the proposed development will be compatible with the heritage items in the vicinity. Mr Robinson comes to a similar conclusion.

24 . With the benefit of a site view I agree with the conclusions of Mr Davies and Mr Robinson. While parts of the development can be seen as background in some locations around St Marks Church, the proposed building would be barely noticeable in the context of the church with its dominant street presence. The relationship with the heritage item at 24 The Avenue is not strong because of the separation between the two buildings. They share no common boundaries and while visible from the item, the impact is minimal at best.

25 . The heritage item at 26 The Avenue is the item closest to the proposed development although any impact is minimised through the separation between the buildings, the retention of some existing landscaping and new landscaping proposed as part of the application.

26 . Overall, and in the consideration of the requirement in cl 19(3), I accept that the proposed development will not have an unacceptable impact on the heritage significance of the items and the settings in the vicinity.

27 . The issue of impact on the amenity of the adjoining properties raised a number of separate issues. Loss of privacy was an issue raised by most residents adjoining the subject site although an amendment proposed by the applicant to raise the sill heights of the adjoining first floor bedroom windows essentially overcomes this concern. Other concerns were addressed through the more than adequate separation between the subject site and its buildings and adjoining properties.

28 . Other amendments also moved the building from the boundary adjoining 24A The Avenue to provide a setback of 900 mm. I agree with the amendment as it provides the opportunity for some separation from the adjoining pool area and the provision of some landscaping. Drainage was also raised by a number of residents although not as an issue by the Council. A condition addressing drainage was proposed and accepted by the applicant. In the absence of any other evidence to suggest that this will not address the drainage implication of the proposal I intend to impose this condition.

29 . A consistent concern from residents was a loss of the pleasant and treed environment that they currently enjoy. In accepting that the outlook that the residents currently enjoy will change through the construction of the proposed buildings, the provisions of SEPP 5 allow for the form of development proposed in this application. While the floor space ratio exceeds the 0.5:1 in SEPP 5, I am not convinced that the exceedance manifests itself in a way that would warrant the refusal of the application for this reason. I note that the proposal comfortably meets the height requirement in SEPP 5 in addition to the other numerical standards in cll 12, 13, 13A and 14 and also the qualitative requirements in cl 25.

30 . For these reasons the orders of the Court are:
1. The appeal is upheld.
2. Development application 2002/1244 to demolish three existing dwellings and erect a housing development for older people or people with a disability at 35-39 Ryde Road, Hunters Hill, is approved subject to the conditions in Annexure “A”.
3. The exhibits are returned with the exception of Exhibit A.
_______________
G T Brown
Commissioner of the Court
rjs