Todd Buncombe v Leichhardt Council
[2016] NSWLEC 1093
•16 March 2016
|
New South Wales |
Case Name: | Todd Buncombe and Anor v Leichhardt Council |
Medium Neutral Citation: | [2016] NSWLEC 1093 |
Hearing Date(s): | 4 March, 2016 |
Date of Orders: | 16 March 2016 |
Decision Date: | 16 March 2016 |
Jurisdiction: | Class 1 |
Before: | Smithson AC |
Decision: | 1. The appeal is upheld |
Catchwords: | DEVELOPMENT APPLICATION: alterations and additions, works to a cottage in a conservation area, heritage, view impacts from waterway, excavation, demolition or alterations, resident objections |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Todd Buncombe and Anor v Leichhardt Council |
Representation: | Counsel: |
File Number(s): | 11158 of 2015 |
Publication Restriction: | No |
JUDGMENT
ACTING COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act against the deemed refusal by Leichhardt Council (the Council) of Development Application D/2015/472 (the application). The application is for substantial alterations and additions to an existing dwelling, including new pool, and reconstruction of the existing garage and boatshed at 7 Gallimore Avenue, East Balmain (the site).
In essence the applicant proposes to remove and replace 1990’s additions adjoining the southern boundary to the south of an existing cottage and to reinstate elements of the cottage dating variously from the 1840’s to the early 1900’s. This includes replacement of the balcony and roof, alterations to some exterior openings and treatment to the original stone work. The authenticity of some of the elements proposed to be reinstated was questioned by the Council.
The replacement of the 1990’s addition takes the form of a new addition, referred to in the proceedings and variously as ‘the pavilion’ or new wing, generally but relevantly not wholly within the building envelope of the existing 1990’s addition and cantilevering over a retaining wall / rock face at the rear of the boatshed. The boatshed is also to be replaced with a new boatshed, a staircase along the northern boundary removed to expose the rock face, certain trees adjoining the waterway retained, additional excavation of the rock face internal to the site undertaken, a new swimming pool and terraced landscaping works installed, and the garage modified.
The site is agreed by the parties to be a contributory element in the East Balmain Conservation Area as designated in the Leichhardt Development Control Plan (DCP) but is not a listed heritage item under the Leichhardt Local Environmental Plan (LEP). There was also common agreement that many features of the original cottage are not known and that the cottage has been modified over time.
The appeal was subject to mandatory conciliation and arbitration on 3 March 2016 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. The conciliation conference commenced on site and the Court, in the company of the parties and their experts, conducted a view of and from the adjacent area, including the waterway, and neighbouring properties. The Court heard from a number of resident objectors and a supporter.
One neighbour from 9 Gallimore Avenue sought and received clarification onsite that there would be no impact on her property or retaining wall from the proposed development and raised no other concerns. A second resident who lived opposite the site at 2 School Street supported the removal of the existing garage and had no objection to the proposed skylights which would be visible from his property. Two owner / occupiers and the secretary of the owners corporation from the adjoining residential flat building at 5 Gallimore Avenue raised objections in terms of: the overshadowing of the drying area and a number of windows of apartments within their complex from the pavilion extension; visual and view impacts; privacy impacts to lower apartment windows; and the inappropriateness of a modern development in a Conservation Area, given their own development was having issues with modifications as a result of being in the same Conservation Area.
As no agreement was reached during the conciliation phase, despite genuine attempts by both parties, the conciliation conference was terminated pursuant to s s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(ii).
Leave was granted to rely on amended plans arising from the conciliation phase. In essence, the modifications proposed to: reduce the size of the boatshed to a similar building envelope to that of the existing boatshed; reduce the height and width (ie size) of the pavilion extension; delete one of two skylights; raise the height of the garage floor level; retain existing ‘nib’ stone walls in the cottage; and reinstate the presumed original door opening of the cottage.
The applicant also provided additional advice with regard to foreshore risk management (in terms of potential flooding), car parking levels and the basis for the amount of excavation sought to the rock face situated between elements of the existing structures.
At the outset of the hearing, the Council advised the Court that the modifications proposed by the applicant in the amended plans or agreed to by the applicant in conditions of consent, addressed a number of the Council’s concerns. Specifically, the Council no longer pressed concerns in terms of the accuracy of the plans, flooding, the boatshed, or garage levels. The Council also agreed that the impact on the occupants of 5 Gallimore Avenue had been reduced, although not totally alleviated.
Relevantly however, the modifications proposed in the amended plans also sought to extend the southern element of the pavilion to further cantilever over the rock face in its southern most point. The Council’s expert planner raised concerns with this aspect of the development, as will be discussed later.
The Council’s primary concern was that the ‘pavilion’ element of the development remained, unnecessarily, too large which had various adverse impacts, primarily as a result of the site’s location in a significant Conservation Area and its visibility from the waterway. In particular, the Council contended, the extension, even as modified, would result in a diminishment of the heritage elements of the cottage that the application sought to promote.
The applicant in response in submissions raised concerns that the cottage was being dealt with by the Council’s heritage expert as if it were a listed heritage item which it wasn’t, and noted that the proposed development was entirely compliant with Council’s numeric controls.
In essence, the applicant argued that the ‘pavilion’ wing was not a new element attached to a heritage building, was largely replacing an existing unsympathetic 1990’s addition, and was part of an overall development involving the reinstatement of historic elements of a contributory building in a Conservation Area. The applicant argued that the site was a large but constrained waterfront property with the lower portion undevelopable (under Council controls) and the new pavilion was an appropriate sophisticated response to provide modern accommodation for the owners whilst revealing more of the cottage that is evident today and having regard to the site’s constraints.
EXPERT EVIDENCE
Expert evidence was provided by Mr Darroch, Planner and Mr Davies, Heritage Consultant for the Applicant and Ms Gordon, Planner and Mr Moore, Heritage Consultant for the Council. A joint report was prepared by all 4 experts.
THE SITE AND ITS CONTEXT
The subject site (the site) is referred to as 7 Gallimore Avenue, Balmain East being Lot 1 DP64404 and Lot 1 DP 528268. It is located on the north-eastern side of Gallimore Avenue with an area of 817.6m² and a street frontage of 15.9m.
The site is developed into a series of terraces and ground levels vary from a RL15.55 adjacent to Gallimore Avenue to RL 2. 11 adjacent to the Parramatta River / Sydney Harbour, falling approximately 13.4m across the site.
The site presently accommodates a double garage with a skillion roof at the highest level accessed from Gallimore Avenue, with storage area under. A two storey dwelling is located lower on the site at around RL 12.99. A swimming pool and boatshed are located at the lowest level, adjacent to the water.
The locality is characterised by a variety of dwelling types and ages being predominantly two storey single dwellings but including residential flat buildings.
Immediately adjacent to the site to the south is a residential flat development at 5 Gallimore Avenue. This development comprises two buildings constructed at different levels. Immediately adjacent to the north is a 1-2 storey dwelling at 9 Gallimore Avenue whilst to the east (rear), the site fronts the Parramatta River at Iron Cove.
On the opposite side of Gallimore Avenue, two storey residential dwellings are constructed in an elevated position above the road level.
THE PROPOSAL
The proposal, as modified during the conciliation process, involves alterations and additions to the existing dwelling, including new pool, and replacement of an existing garage and boat shed.
The works relevantly and in more detail include:
(a)retention and enhancement of much of the remaining original 1840’s stone cottage and reinstatement of the assumed balcony and northern entry way but with removal of some internal walls
(b)replacement of the cottage roof with a roof shown in photos of the cottage circa 1910
(c)a new double garage at street level with two bedrooms and ensuite below the garage at ground level
(d)removal of what was described as the 1990’s south-eastern wing of the dwelling and its replacement in a similar location by a modern wing described for ease of reference as the ‘pavilion’. The pavilion is over four levels and involves excavation between the existing dwelling and the southern boundary. This component of the dwelling is to contain an entry lobby, lift and stairs at street level, bathroom, laundry, storage, ensuite and bedroom at the ground level, cellar, WC, pantry, study, dining room and lounge room at lower ground floor, and cellar and access way at the basement level. The easternmost portion is to cantilever over an existing rock face / retaining wall situated at the rear of the boatshed and there is a protruding ‘fin’ to the northern façade
(e)excavation of a rock face between the garage and the cottage to assist with internal ventilation
(f)construction of a boatshed in a similar location and to a similar height as the existing boatshed
(g)construction of a swimming pool to the upper terrace and associated landscaping works
(h)removal of an existing tree at the street frontage and a number of smaller trees along the southern boundary but retention of three taller trees situated between the boatshed and the southern boundary
(i)removal of external stairs, pathways and retaining walls along the northern boundary and construction of a spiral staircase along the southern boundary.
THE STATUTORY CONTEXT
The site is zoned R1 General Residential under the Leichhardt Local Environmental Plan 2013 (the LEP) and the proposal is permissible in the zone.
The following clauses are relevant to the appeal issues:
Clause 2.3 Zone Objectives
Clause 2.7 Demolition Requires Development Consent
Clause 4.6 Exceptions to development standards
Clause 5.10 Heritage conservation
Clause 6.2 Earthworks
Clause 6.5 Foreshore Building Line
The application complies with the LEP development standards in terms of FSR, height, landscaped area and site coverage and the Council did not contend any non-compliances with any LEP numeric development standards.
The site is not a listed heritage item in the LEP but is located within a Heritage Conservation Area and is in reasonable proximity to a number of heritage items hence it is subject to the provisions of Clause 5.10 - Heritage Conservation.
The development is also subject to the provisions of the Leichhardt Development Control Plan 2013 (the DCP). These included the following relevant provisions under Part C: Place (Section 1 – General Provisions)
C1.0 - General Provisions
C1.1 - Site and Context Analysis
C1.2 - Demolition
C1.3 - Alterations and Additions
C1.4 - Heritage Conservation Areas and Heritage Items
C1.19 - Rock Faces, Rocky Outcrops, Cliff Faces, Steep Slopes and Rock Walls
C1.20 - Foreshore Land.
Under Part C: Place (Section 2 - Urban Character), specifically the provisions at C2.2 Distinctive Neighbourhoods, the development is subject to the provisions of clause C2.2.2.2 Balmain East Distinctive Neighbourhood; and Part C: Place (Section 3 - Residential Provisions).
Of most relevance to the appeal referred to by both parties are the provisions for the Balmain East Distinctive Neighbourhood (BEDN). In the DCP, neighbourhoods are deemed to be distinctive by virtue of their topography, estate, and street pattern or building form. Sub Areas are identified within these neighbourhoods being areas which have unique characteristics with specific objectives and controls. Development must be consistent with the Desired Future Character and Controls for the BEDN. A total of 17 controls are listed to achieve the Desired Future Character of the BEDN. The subject site is located within the Eastern Waterfront Sub Area of the BEDN to which a further 4 controls apply.
HERITAGE CONSERVATION AREA CONSIDERATIONS
The primary concern of the Council was that the proposed development, and the extent of the pavilion component in particular, was inappropriate in the Balmain East Heritage Conservation Area (HCA), including how it would be viewed from the Parramatta River / harbour, in terms of its impact on the refurbished cottage as a contributory building in the HCA.
Specifically, the Council was concerned that the development did not retain and enhance the significance of the HCA but rather diminished the significance and character of the area by changing the way in which the cottage could be appreciated in terms of its original design, evolution through change over time, and relationship with its context.
This HCA is particularly noted in Council's DCP as a HCA of significance comparable to other highly important Conservation Areas in Sydney, such as The Rocks and Millers Point. Mr Moore argued that this indicates the level of concern with which Council and the community view the Area.
The Council’s primary concern was that the design of the (pavilion) addition will block public views from the Parramatta River to part of the early cottage on the site due to the projection of the proposed addition forward of the alignment of the cottage and to the north. In particular, the projection, when combined with the proposed height, will block views to up to one third of the original cottage, from a broad sweep of the waterway particularly to the east.
The Council did not take issue with the modern appearance of the proposed addition or its general location but raised concern that its height, bulk and scale would dominate, rather than compliment, the cottage and thus diminish its contribution to the HCA.
The Council referenced the provisions of Cl. 5.10 of the LEP including the objectives to consider the effect of the proposed development on heritage significance and with objective O1 of Clause C1.4 Heritage Conservation Areas and Heritage Items of Part C1 of the DCP which requires sympathetic alterations and additions to buildings in a HCA.
The Council contended that the application failed when assessed against the following DCP objectives:
(a)b) encourages the protection, restoration, continued use and viability of buildings for their original purpose;
(b)d) is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building
(c)e) conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting
(d)h) protects and enhances views of the existing building from the public domain
(e)i) new buildings are sympathetic in scale, form, architectural detail, fenestration and siting to the Heritage Conservation Area.
The Council drew particular reference to the Desired Future Character Controls applicable to the Balmain East Distinctive Neighbourhood including at C2 which states, inter alia, that early buildings prior to 1850 should be conserved given their rarity and, where such buildings are visible from the public domain, visual access shall be retained.
The parties agreed that the public domain from which the development is most visible is the Parramatta River waterway. The Council argued that the proposal should be refused as it has an unacceptable visual impact when viewed from Parramatta River with the design of the pavilion extension inappropriately making these new works the visually dominant feature of the dwelling, rather than enhancing the visual significance of the original dwelling.
Ms Gordon in particular was concerned that the proposed cantilevering of the pavilion over the rock retaining wall at the rear of the site would result in the pavilion being inappropriately visually dominant as viewed from the waterway inconsistent with the DCP controls for Foreshore Land and the Balmain East Distinctive Neighbourhood.
The parties agreed that the cottage had been altered substantially over time and that new development on the site was not precluded providing it met the objectives of the HCA and was responsive to its HCA context.
Mr Davies argued that the external form of the cottage and its relationship to the waterway would be better presented through the development than currently exists. He acknowledged that the approach is complex due to the extensive alterations and additions that have been made to the building over time. This was confirmed with the experts on site when trying to establish ‘original’ or historic cottage components in terms of walls and openings.
Ms Gordon acknowledged that the pavilion wing may be a good design in its own right but found it would unreasonably obscure a contributory building in a Conservation Area being overly large and elevated.
The applicant argued that the ‘original dwelling’ is being restored in terms of its presentation to the water that has been lost over time. Mr Davies believes that the development will therefore make a considerable contribution to the HCA and the significance of this part of Balmain. He considers credit should be given to the positive contribution the proposal makes to the views from the Parramatta River with the design providing a wider view of the ‘original’ dwelling and in terms of the restoration of elements of the cottage that might otherwise not be made by owners who simply occupied the dwelling in its current unsympathetic form.
Both Mr Davies and Mr Darroch argued in essence that the addition would be a buffer between the unsympathetic and dominating residential flat building to the south and the ‘original’ building’ on the site and that, without this application, there would be no ‘original dwelling’ to compete with, as it is currently buried in mid-century additions with an unsympathetic roof form. Further the extensive waterway setback of the original modest dwelling limits the ability to locate modern additions on the site having regard to the HCA objectives. In this regard, the scalloping design of the pavilion wing was a design response to further open up the views to the original cottage including from the adjacent residential flat building.
Mr Moore argued that, while the appropriate conservation of the existing cottage might be supported and applauded for its contribution to the HCA, and should be encouraged, the view to the cottage from the waterway will then be unreasonably constrained, limited and dominated by the ‘pavilion’ extension which is proposed to significantly occupy the foreground of the dwelling and be of a character that will dominate the views to it.
In summary the competing positions of Mr Davies and Mr Moore as stated in the Joint Report (Exhibit A) were that, in Mr Davies’ opinion, ‘the existing cottage is currently buried in later additions and has lost its form, scale and materials. The proposal restores the ability … to read the earlier historic form and gives back to the harbour view the understanding of this early marine dwelling. The proposed new works for the living wing are clearly new and will be easily read as a contemporary addition to an earlier form’. By contrast, Mr Moore described the proposal as a ‘fanciful recreation of the early dwelling which is unsupported by evidence’ and which is then substantially concealed ‘with a dominating addition which will prevail in views of the property and importantly, its context, from the harbour…’.
Given the parties agreement that the important place to consider the development in terms of its HCA aspect and impact was the waterway, a viewing of the site from the Parramatta River was undertaken by the Court with the parties. The route taken by the Circular Quay to Balmain public ferry was traversed and the Court was also taken to view other developments in proximity which were also visible from the waterway.
A view analysis was provided to the Court (Exhibit 3) showing the site from various vantage points from the ferry. Usefully the view analysis was from 5 different sequential locations on that route (travelling from south to north) and showed: the existing house, the new development under the original scheme the subject of the DA and appeal, and the view with the reductions and modifications proposed during the conciliation and subsequent hearing.
Having regard to this analysis, Mr Darroch considered that the visual impacts of the development on the waterway would be minimal at best noting that the pavilion would also be partially screened by the existing trees to be retained and the boatshed.
However, Ms Gordon considered that the proposed works projecting the southern wing closer to the foreshore than presently exists and which cantilever over the sandstone retaining wall results in an unacceptable impact extending over up to a third of the cottage. The combination of the projection of the works in both directions, together with its height, relative to the height of the proposed first floor verandah of the original dwelling result, in her view, in additions which would significantly obscure works to the cottage to the extent that the pavilion becomes the dominant focal feature of the dwelling, not the cottage, when viewed from the waterway. Accordingly, the new works diminish the contribution the site makes to the scenic quality of the waterway and to the Conservation Area.
To the contrary, Mr Darroch argued that the proposal had used the DCP provisions as a starting point, resulted in no breaches to LEP numeric controls and removed the poorly designed 1990’s extension which ‘obliterated’ the original cottage. He considered development in the HCA to be ‘wildly varied’ noting the 1960’s residential flat building next door. He also noted that the section of the waterway adjoining the site precluded mooring or anchoring and the development would always therefore be seen in motion with the view of the site from the ferry lasting only 9 seconds. He also highlighted the variety in age, scale and setbacks of other developments visible from the waterway passed on the viewing.
Mr Darroch advised that the extension had been carefully sited to open up views to and from the site and there had been a conscious effort, distinct from the existing development on the site, to show two clearly distinct elements: the ‘reinstated’ cottage; and the modern addition which, in any event, in motion would be quickly obscured by trees and other development.
The applicant contended that the development did not breach or offend any of the DCP controls and challenged the Council’s experts to consider that, in the present form of development on the site, the existence of the 1840’s cottage would largely not be apparent to the general public. In essence therefore, opening up the viewing, and reinstating elements, of the cottage must meet the HCA objectives. Ms Gordon did not accept this proposition although she did consider that the proposals for the cottage were positive with the possible exception of the verandah / balcony element.
To be acceptable to Council’s heritage expert, the pavilion extension would need to be further withdrawn from the cottage element so that it did not obscure it. Ms Gordon was of a similar view, considering that the western fin element should be further recessed and the pavilion height lowered so that it was not visually dominant.
A further Council concern was that the introduction of large uncharacteristic skylights into the western face of the cottage roof would be inconsistent with the objectives of the HCA being obtrusive and visible from properties and the public domain at the higher levels of Gallimore Avenue. The applicant argued that the skylights were to provide amenity (light) into lower levels, that the roof was not original and was being replaced, and that they would be very difficult to view. However, in the modified plan, the applicant agreed to delete the most visible skylight and the Council did not press requiring deletion of the second skylight.
Whilst Mr Moore retained reservations in terms of the extent of demolition of the original and early fabric of the cottage, including the original external western sandstone wall and original internal sandstone walls, this issue was not pressed by the Council with the applicant’s offer to retain internal nibs and modify external openings in an attempt to better reflect the likely original entry way.
EXCAVATION OF ROCK FACE
The Council contended that the proposal should be refused as it involved excessive excavation. In particular, concern was raised that the cutting into the rock face opposite the proposed kitchen would be inconsistent with the objectives of the HCA and with Objectives 01 and 02 of Clause 19 Rock Faces, Rocky Outcrops, Cliff Faces, Steep Slopes and Rock Walls of the DCP as the removal of the rock face would not conserve the unique features that contribute to the quality of the place and not protect the rock face from inappropriate development.
Clause 19 states:
Rock faces, rocky outcrops, escarpments, cliff faces or steep slopes are important elements of the landscape as they contribute to the character of a place, are historical reminders of the natural landform and promote biodiversity and visual interest. Development in proximity to such elements needs to be sensitively planned and designed to ensure that the spatial, physical, environmental, visual context and character of the place is maintained and/or enhanced.
The applicant advised that the excavation was required to improve the amenity of the dwelling. Mr Darroch noted that the proposed excavation would be behind the house and not visible from the street or the waterfront and he was therefore of the opinion that the proposed excavation is not of the type envisaged by Cl.19 as, if this were the case, every subfloor area where it is cut into rock couldn't be altered, not just in Conservation Areas but anywhere in the municipality.
Similarly, Mr Darroch argued that the excavation to provide access to the boatshed has been sensitively placed in an area of disturbance behind the important rock face and retaining wall and behind the boatshed and would be largely unseen from the waterway therefore not materially contributing to the setting. He noted the proposal is complaint with the planning controls including FSR and contributes significantly to diminishing the bulk and scale of the proposal above ground of what is otherwise anticipated by the controls.
However, Ms Gordon argued that the proposed works seek to significantly alter the landform of the site, rather than to follow it. She referred to DCP control C4 under section C1.20 Foreshore Land which states that buildings or structures must respect the topographical features of the site. Buildings are not cantilevering but follow the topography. A similar control is found in the provisions for the BEDN at C1. Mr Darroch disputed that the design did not step down with the topography of the site.
Ms Gordon argued that the excavation is not required to provide for any particular development on the site, but rather only to widen what is basically a relatively unusable external space outside the proposed kitchen and that, as there is no significant benefit to the amenity of the proposed dwelling achieved by the excavation, it is not necessary or appropriate given it results in a four level structure (near the street) of which only one level is wholly above existing ground level.
Ms Gordon considered the extent of excavation adjoining the southern boundary, at up to 10m, excessive and inappropriate, particularly as the lowest level of excavation only provides access from the dwelling to the boatshed level and relocation of the lift within the proposed addition could significantly reduce the extent of excavation required to achieve the same level of access.
Mr Moore also raised concerns that the extent of excavation proposed, in particular cutting into the rock face opposite the proposed kitchen, was inappropriate in a Conservation Area.
IMPACT ON ADJOINING PROPERTY
The Council and a number of adjoining residents at 5 Gallimore Avenue raised concerns that the proposal would have unacceptable impact upon the amenity of the development situated at 5 Gallimore Avenue. This development comprises 2 residential flat buildings at upper and lower levels with a common drying area. Outdoor balconies of the upper level building adjoin the proposed development and a number of windows of habitable rooms of apartments in the lower level (easternmost) building look north across the site. This lower building is potentially more impacted by the proposal's height and bulk due to its lower siting.
In particular, Ms Gordon’s concern was that the height and forward projection of the proposed works to cantilever over the retaining wall would result in an unacceptable visual bulk when viewed form the common areas and dwellings within the easternmost building at 5 Gallimore Avenue and would result in an unacceptable loss of views from the balcony of 18/5 Gallimore Avenue and potentially overshadowing of some apartments in the lower apartment building.
The amended plans proposed by the applicant lowered the pavilion by up to 500mm in part and also reduced the volume and width of the extension. Ms Gordon remained concerned however, about the potential impact of the pavilion element on neighbours to the south.
Mr Darroch argued that:
(a)Adjoining properties are oriented towards the water views and away from the site.
(b)The proposed extension is a sculpted form which remains below 5.5m in height adjoining a four storey apartment building with the apparent bulk of six storeys.
(c)Only a small portion of the proposed development is in the order of 12m (with the amended scheme reducing this by up to 500mm) whilst most is a little over one storey and setback from the common boundary for its length.
(d)There would be no unreasonable view loss arising from the extension given that it is across a side boundary and obscured by vegetation.
(e)All dwellings would still get the required 3 hours of sunlight each day.
(f)The drying area is primarily overshadowed by a wall and existing trees.
Mr Davies noted that the context of the addition is in an area of high Victorian dwellings with large roof forms and adjacent residential flat buildings. The proposal is on a sloping site and the subject proposed addition is not out of scale with the existing dwelling on the site.
FINDINGS
I note, and the parties agreed, that the development complies with all of the relevant numeric LEP controls. The assessment of the application is therefore largely based on the qualitative interpretation of LEP and DCP provisions, particularly in terms of appropriate development within the Conservation Area.
The debate is about the built form of the pavilion extension not in terms of the appropriateness of the design itself but the appropriateness in its context.
With the possible qualified exception of Mr Moore, the Council generally accepted both the proposed works to the cottage and the removal of the 1990’s addition to be positive aspects of the development and did not object to the modern nature or architectural design of the pavilion. The issue was one of how tall or large this extension should be; the taller or larger the more it obscured the cottage elements and potentially impacted its southern neighbours.
I accept the applicant’s argument that more of the original elements of the 1840’s cottage will be visually evident from the waterway than exist today and the pitched roof will not only reflect an aspect of the cottage as it existed in the early 1900’s but will open up more views from the residences on the opposite side of Gallimore Avenue and add to the visual separation of the cottage and the new pavilion element.
Evident to the Court from the view analysis and the viewing from the waterway, was the impact retaining 3 large trees on the southern waterfront portion of the site would have in screening the pavilion, the improvements to the visibility of the cottage resulting from the revised proposal, and the local context of the site relative to adjacent buildings which vary substantially in terms of age, scale, bulk and character.
The development will be viewed (on the evidence) for a maximum of 9 seconds from people on ferries on the waterway, potentially longer for people on private vessels noting however, that such vessels are unable to moor near the site. In that time, the development will be viewed in the context of a substantially larger and closer flat building on one side and a relatively large and modern 2 storey dwelling on the other. Furthermore there are trees and a boatshed further obscuring the view and a variety of dwelling ages and styles on other sites in proximity when viewed similarly from the ferry route.
Whilst I agree that it would be a better outcome if all of the elements of the reinstated cottage were fully visible from the waterway, I accept that it is neither a listed nor intact heritage item requiring such treatment and that the applicant has endeavoured to open up views to as much of the cottage as is possible, and more than exist today, whilst still undertaking a numerically complying contemporary development not out of character for such waterfront sites.
The Council accepts that the applicant seeks a component of new development on the site and does not oppose this per se. The applicant has generally sited the new wing in the location of the existing development on the site and has sought to confine all of the new works in this location albeit that raises criticism of the 4 level outcome (in part) by the Council. Setting aside the general controls that apply to the Heritage Conservation Area, I accept the applicant’s contention that the form and size of the extension is commensurate with, if not even less than, what the Council’s development controls permit and in fact envisage for such sites. It is difficult to see how a different design in any other location on the site could better meet the contemporary living requirements associated with new development and respect the heritage context in which the development is situated.
As lowering of the pavilion extension will not materially expose more of the cottage, and the impacts of the height on adjacent development did not raise any significant amenity impacts that could be quantified by the Council or which I could establish, I do not see a basis for requiring further lowering to what the applicant has already offered given the development complies with the LEP height requirements.
Whilst the cantilevering of the development over the southern rock face and the excavation to the internal rock face are not desirable, I accept the design basis for these works and, given that more of the rock face will be visible with the removal of the external stairs on the northern boundary, I find on balance these works are not so significant as to warrant refusal of the application.
In summary, and considering the proposal with all of its various elements and the context in which it is located, I find the development overall to not be inappropriate for a contributory site in the Conservation Area in which it is situated.
I was also not persuaded that the amenity impacts on neighbours would be sufficiently adverse to warrant refusal or modification of the proposal without potentially compromising either the conservation values of the site or the reasonable accommodation of the occupants of the dwelling on it, noting in particular the compliance with the controls in terms of the form of development permissible on the site.
Finally, the Council argued that the proposal was not appropriately described, constituting demolition of a contributory building within a Heritage Conservation Area, rather than alterations and additions to an existing building with a Heritage Conservation Area. This was given the extent of demolition and new build proposed. The Council referred the Court to a number of authorities on this issue.
The Council however, agreed with Mr Darroch that, whether it is demolition or not, the same controls in the Heritage Conservation Area apply, the only difference being the DCP demolition control C1 of C1.2; and all that control says is that the replacement building needs to be consistent with the DCP controls (which other aspects of the DCP require in any event) and that the replacement building needs to be compatible with the HCA, which is also a requirement in any event.
As the HCA compatibility test is central to this appeal, and I have already indicated my findings on that aspect, and given the Council accepts Mr Darroch’s conclusion as to the lack of relevance of the development’s description to this appeal, I do not consider it necessary to determine the question of how the development is most appropriately described as nothing in this appeal turns on that issue.
The orders of the Court are:
(1)The appeal is upheld.
(2)Consent is granted to development application DA D2/2015/472 for alterations and additions to the existing dwelling, including new pool, reconstruction of the existing garage and boatshed at 7 Gallimore Avenue, East Balmain subject to the conditions in Annexure A
(3)The exhibits, except Exhibits A, 1 (A3 version only), 2, 3, and 6, are returned.
________________
Jenny Smithson
Acting Commissioner
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