Woods v Ku-ring-gai Council

[2019] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation:	Woods v Ku-ring-gai Council [2019] NSWLEC 1122
Hearing dates:	11-12 and 26 March 2019
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1)   The appeal is upheld. (2)   Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court is approved, subject to the conditions of consent at Annexure A. (3)   The exhibits, other than Exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a new dwelling, swimming pool and tennis court – whether the demolition of the existing dwelling will adversely impact upon the heritage significance of the heritage conservation area – whether the new dwelling will adversely impact upon the heritage significance of the heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979
Cases Cited:	Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Texts Cited:	Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	David Woods (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) R White (Respondent)   Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/196764
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court (the proposal) at 27 Braeside Street, Wahroonga (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to conciliation on 11 March 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. Leave was granted by the Court on 28 February 2019 for the applicant to amend the application by relying on amended architectural drawings and landscape drawings that incorporated changes to the proposal agreed upon by the planning experts. The amended proposal was renotified by the Council and the closing date for the receipt of submissions was after the listed hearing dates of 11-12 March 2019, so the part-heard matter was adjourned until after the closing of the notification period so that any further submissions could be considered. One submission was received by Council from an adjoining neighbour in support of the amended proposal.

Issues

4. The Council’s contentions can be summarised as:

• The demolition of the existing dwelling will have a detrimental impact on the heritage significance of the Wahroonga Conservation Area (Wahroonga CA) because the existing dwelling is contributory to the heritage significance of the Wahroonga CA.

• The proposed new dwelling will have a detrimental impact on the heritage significance of the Wahroonga CA because its orientation is across the site contrary to the established alignment pattern and because the finishes and colours of the proposal are uncharacteristic in the Wahroonga CA.

The site and its context

5. The site is on the southern side of Braeside Street, to the west of Wahroonga Avenue. The battle-axe site has an area of 2,479m², with a rear boundary dimension of 50.29m and a side boundary of 43.62m, excluding the access handle on the western side of the site. The existing dwelling is orientated in an east-west direction and positioned close to the northern boundary shared with 29 Braeside Street. The existing dwelling includes contemporary additions at the eastern end of the original footprint and a contemporary separate garage structure to the west of the dwelling. There are early outbuildings extant on the site including an external toilet and a building used as a cabana.

6. 29 Braeside Street is directly in front of the site, having been subdivided from the original property in 1965. 29 Braeside Street contains a single storey dwelling constructed c1970, in a style described by Mr Brooks as, “Post War American Colonial”.

The proposal

7. The proposal is to demolish the existing dwelling and outbuildings and to construct a new two storey, masonry, rendered and painted dwelling with a slate clad roof. The new dwelling is arranged in a U-shape around a swimming pool and is orientated in a north-south direction on the site in order to accommodate a tennis court, also orientated in a north-south direction, to the east of the dwelling. The existing driveway extends towards the rear of the site to access the new garage at the southern end of the ground floor.

Planning framework

8. The site is zoned R2 Low Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) and the objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

9. Development consent is required for the demolition of a building, at cl 2.7, and for a building within a heritage conservation area, at cl 5.10(2)(a)(iii) of LEP 2015.

10. The site is within the Wahroonga CA (Schedule 5 Part 2 of LEP 2015 and indicated on the Heritage Map - Sheet HER_006 of LEP 2015). The site is within the vicinity of heritage items, including 31 Braeside Street adjoining the site to the east (Item 843, Schedule 5 of LEP 2015). Clause 5.10(4) of LEP 2015 is in the following terms:

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

11. The Ku-ring-gai Development Control Plan (KDCP) refers applicants to Council’s Heritage Inventory Sheets for HCAs, at Part 19, “Introduction” and “Supporting Heritage Documentation”, as follows:

“Applicants are advised to refer to:

i) Council’s Heritage Inventory Sheets for Heritage Items and HCAs.

Note: Inventory Sheets have been prepared for each of Ku-ring-gai’s HCAs and are considered by Council when assessing development applications for work within the Heritage Conservation Area.

Note: The Inventory Sheets are available via Council’s website start="12">

The Statement of Significance for the Wahroonga CA in the Heritage Inventory Sheet (Ex 2, tab 6) is as follows:

“Wahroonga Heritage Conservation Area is of heritage significance for its distinctive residential streetscapes which evidence the transformation of early subdivisions of the 1890s into the later rectilinear grid lot street and lot pattern of later subdivisions including the Wahroonga Heights Estate. The area contains a significant collection of grand residences from the Federation and Inter-war periods, built following the opening of the North Shore railway line in 1890, many of these the [sic] residences of prominent families of this period, and often designed by prominent architects, for example the 1894 Ewan House (formerly Innisfail) designed by architect Herbert Wardell for John Thomas Toohey, and eleven houses designed by the architect Howard Joseland. The western end of Burns Road and western side of Coonanbarra Road are representative streetscapes of intact more modest Federation period houses.

The through-block pathways and formal avenues of street trees 2within the area (in Burns Road, Water Street and Coonanbarra Road) along with the formal landscaping of Wahroonga Park, and its distinctive John Sulman-designed shops in Coonanbarra Road facing the Park, are a tribute to the work of the Wahroonga Progress Association in the early 20th century (which included Sulman as a member), and have resulted in a high-quality and distinctive residential landscape.”

13. The Council submits that the Heritage Inventory Sheet should be read as whole and the Statement of Significance is a summary and should not be extracted as a series of criteria by which to measure the contribution of an individual building within the Wahroonga CA.

14. Contributory properties are buildings and sites within a HCA which are deemed to exhibit one or more of the characteristics listed at Part 19, “What is a Contributory Property”, as follows:

“What is a Contributory Property?

This Part identifies various controls that specifically apply to contributory properties. For the purpose of this DCP, Contributory Properties are buildings and sites within a HCA which [sic] are deemed to exhibit one or more of the following characteristics:

i) buildings and sites that make an important contribution to the character and significance of the HCA. They can be from a key historical layer, true to an architectural type, style or period, or highly or substantially intact including their garden setting. Where subdivision has occurred, the subdivision is within the key historical period or the area.

ii) buildings and sites which are altered from their original form but are recognisable and could be reasonably reinstated to that condition or the alterations are not considered to be detrimental to the integrity of the building; for example, a building that has been rendered or painted or where the roof cladding has been replaced but the form is otherwise legible.

iii) buildings and sites with new layers/additions sensitive to the style, form, bulk, scale and materials of the original building.

Note: Contributory buildings do not necessarily need to be high-quality buildings but should represent the key historical period of the HCA. An HCA may also contain high-quality buildings which are not necessarily from the key historical period.”

15. Section 19B.1 of KDCP, “Demolition within HCAs” has the following objective:

“To ensure that sites, buildings and landscape features that contribute to the significance of an HCA are retained.”

16. Controls 1 and 2 of section 19B.1 are in the following terms:

“1. The demolition of Heritage Items and contributory properties within HCAs is not supported.

2. Whole demolition of buildings, structures and landscape features (including significant trees) is generally not supported unless the applicant can satisfactorily demonstrate:

i) demolition will not result in any adverse impacts on the streetscape or character of the HCA;

ii) retention and stabilisation of the building or structure is unreasonable;

iii) all alternatives to demolition have been considered with reasons provided why the alternatives are not acceptable;

iv) the replacement building is compatible with the identified significance and character of the streetscape and the HCA as a whole.”

17. Section 19D.1 of KDCP, “Local Character and Streetscape” has the following objectives:

“1. To promote high quality new design that complements the streetscape character and heritage significance of the HCA.

2. To ensure that new development retains the identified historic and aesthetic character of the HCA in which it is situated.”

18. The built form controls 1 and 2 of section 19D.1 are in the following terms:

“1. Scale and massing of any new buildings is to be integrated into the established character of the HCA and respect the scale, form and character of adjacent or nearby development. They are to be incorporate design elements such as the roof forms, façade and parapet heights, door, window and verandah proportions of contributory properties in the HCA, particularly neighbouring buildings from the same key development period.

2. The design and character of any new buildings are to be informed by the:

i) date and style of contributory properties;

ii) scale and form of contributory properties;

iii) street and subdivision patterns of the HCA;

iv) setbacks of neighbouring contributory properties;

v) materials, building techniques and details used in the HCA; and

vi) views, vistas and skylines in the HCA.”

19. Section 19D.2 of KDCP, “Building Setbacks”, has the following objectives:

“1. To ensure the location and siting of new development respects the established pattern of built elements in the streetscape and the HCA.

2. To ensure new development does not adversely impact on the immediate streetscape or significant views within the HCA.”

20. The relevant Location and Setback of New Buildings controls of section 19D.2 are as follows:

“1. The siting of new buildings is to be consistent with the established pattern of built elements in the HCA, including the main dwellings, garages, carports and garden structures.

3. New buildings are not to be orientated across sites contrary to the established alignment pattern.

4. The location of new buildings is to ensure that significant views to and from places within the HCA are retained.”

Expert evidence

21. The applicant relied on the expert evidence of Mr Graham Brooks (heritage), Mr Andrew Minto (planning) and Mr Ross Jackson (arboriculture). The Council relied on the expert evidence of Mr Robert Moore (heritage), Mr Stuart Wilson (planning) and Mr Guy Paroissien (arboriculture). Following the agreement of the planning experts on changes to the original proposal in their joint report (Ex 4) that they agreed successfully addressed the contentions raised concerning planning issues and the granting of leave by the Court for the applicant to amend the application, the planning experts were not required to give oral evidence. Following the agreement of the arboriculture experts in their joint report (Exs 3 and H) and the provision of a Tree Management Plan (Ex J), the arboriculture experts were not required to give oral evidence.

Demolition of the existing dwelling and its impact on the heritage significance of the Wahroonga CA

Interpretation

Approach to the “Ku-ring-gai Potential Heritage Conservation Areas North Review Draft Final Report” by Paul Davies Pty Ltd

22. The KDCP does not identify buildings that contribute to the collective heritage significance of a heritage conservation area; as it does not adopt or incorporate any of the reports prepared as the basis for the local listings of the HCAs in Schedule 5 Part 2 of LEP 2015.

23. An extract of the “Ku-ring-gai Potential Heritage Conservation Areas North Review Draft Final Report” by Paul Davies Pty Ltd 2010 (“the report”) was admitted into evidence (Ex 2, tab 4). Mr Hemmings SC submitted that the applicant does not rely on the report, as it has not been adopted or incorporated by the KDCP, nor does it satisfy the “Stockland v Manly gateway” (meaning that it should be given little weight as a Council policy per Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 (Stockland v Manly) at [91]-[92]).

24. In the report, properties within the 14 draft HCAs were mapped as contributory, neutral or uncharacteristic development based on fieldwork (Ex 2, tab 4, p 2). The report noted that battle-axe lots with the potential for heritage listing and requiring further research were identified by comparing aerial photographs with 1943 aerial photographs (Ex 2, tab 4, p 3). The joint report of the heritage experts (Ex 5) includes maps extracted from the report of the study area including the site. Mr Brooks noted that the report identified the site as “pre-1943” in Figure 125 (Ex 5, p 3) and did not identify the site as either “contributory” or “neutral” in Figure 126 (Ex 5, p4).

25. I have had no regard to the findings of the report or the extracted maps from the report reproduced in the heritage experts’ joint report in determining whether the existing dwelling contributes to the heritage significance of the Wahroonga CA. Although it is my understanding from previous proceedings that the report was in fact exhibited and it therefore may satisfy the Stockland v Manly (at [92]) so-called “gateway” as worthy of being given weight in considering its findings; the Council submitted that a contributory property is deemed so on a case by case basis using the criteria in KDCP (quoted at [14]) and not on the basis of the report and its findings and I accept the parties’ agreement on this matter.

26. Furthermore, the extracts of the report in evidence, both the forward part of the report (Ex 2, tab 4) and the maps (Ex 5), suggest to me that the report was inconclusive in determining the status of the site in terms of its contribution to the heritage significance of the Wahroonga CA and for this reason the site is left uncoloured in Fig 126 (Ex 5, p 4). If this is indeed the case, then the report is of no assistance in this matter. I am of the view that the report was inconclusive in determining the status of the site because had the site been accessed by the report’s author, it is very unlikely that the existing dwelling would have been assessed as “uncharacteristic”. The legend of Fig 126 does not include a code for an uncoloured site, nor does it include a code for an uncharacteristic building. Therefore a conclusion cannot be drawn that an uncoloured site is necessarily identified as neither contributory nor neutral, instead it is more likely that as a battle-axe allotment, it was not viewed by the author and merely identified by the report as extant in 1943. Based on this conclusion, a determination has to be made on the contribution the existing dwelling makes to the heritage significance of the Wahroonga CA as part of this application, which is consistent with the parties’ submissions.

Approach to the Heritage Inventory Sheet

27. The applicant submits that the statutory task under cl 5.10(4) requires an inquiry of the relevant terms of the KDCP to understand the prescribed approach to determining the effect of the proposed development on the heritage significance of the area. The KDCP calls up the Heritage Inventory Sheet, which must be constrained by the Statement of Significance. According to the applicant’s submission, there are five elements within the Wahroonga CA embraced by the Statement of Significance, as follows:

1. “distinctive residential streetscapes”;

2. “rectilinear grid lot street and lot pattern”;

3. “grand residences”;

4. “through-block pathways”; and

5. “street trees”.

28. The Council submits that the Heritage Inventory Sheet should be read as a whole and the reference in the description of the Wahroonga CA to “modest 1940s-1960s housing” is equally pertinent to the consideration of the effect of the proposed development on the heritage significance of the area.

29. I accept the Council’s submission that the Heritage Inventory Sheet is to be read as a whole and the Statement of Significance is a summary of heritage significance and should not be extracted as a series of criteria by which to measure the contribution of an individual place or building within the Wahroonga CA, because the KDCP refers applicant’s to the Heritage Inventory Sheets for HCAs and not to the Statement of Significance in isolation. I do not accept the applicant’s submission that the assessment of whether a building or place contributes to the heritage significance of a HCA is constrained by reference only to the Statement of Significance.

Approach to the application of “What is a Contributory Property” in the KDCP

30. The Council submits that there is no hierarchy or cascading effect in the terms of the characteristics identified in (i), (ii) and (iii) of “What is a contributory property?” in KDCP, quoted at [14]. Contrary to this submission, the applicant submits that the proper application of the KDCP is to start with the characteristics identified at (i), as the threshold is that buildings and sites must make an important contribution to the character and significance of the HCA. If the building or site does not pass (i), then (ii) and (iii) have no part to play in the determination of whether the building or site makes an important contribution to the character and significance of the HCA.

30. I have applied the Council’s approach that there is no hierarchy or cascading effect in the terms of the characteristics identified in (i), (ii) and (iii). I accept the Council’s interpretation of this section because the introductory paragraph states, “Contributory Properties are buildings and sites within a HCA which are deemed to exhibit one or more of the following characteristics:” and the characteristics are then listed in the numbered paragraphs and each numbered paragraph begins with the same, “buildings and sites...”. The “one or more” characteristics does not indicate a hierarchy or cascading effect, although I acknowledge the applicant’s view is the more sensible approach to this poorly drafted section, because a logical first step would be to define the threshold above which fabric and places will be deemed to contribute to the character and significance of a HCA.

31. The note at the end of the section, “Contributory buildings… should represent the key historical period of the HCA” should probably be the key to the deeming of contributory properties because fabric dating from the key period/s of significance is understood as the fundamental attribute of collective significance (after which an assessment may be made of whether that contribution has been sufficiently eroded by a lack of integrity). If each numbered paragraph was read in the context of “contributory buildings… should represent the key historical period of the HCA”, then reading each paragraph without attributing a hierarchy or cascading effect would make sense. However it would be problematic to interpret the note at the end of the section as such because it would be strictly contrary to the terms of s 35(2) of the Interpretation Act1987.

Experts’ evidence

33. The heritage experts disagreed on the contribution the existing dwelling makes to the heritage significance of the Wahroonga CA. According to Mr Brooks, the dwelling is “no longer readily visible from the streetscape or public realm in the HCA”, and the subject house cannot be classified as contributory “given that the subject house is effectively not visible from the public realm in Braeside Street and is not of a characteristic of significance for the HCA that is directly contained in the Statement of Significance”.

34. According to Mr Moore, “the subdivision and consequent visibility of the subject house have not eliminated its claim to be regarded as a contributory building in the HCA. This is particularly so having regard for the date of the first stage of the construction of the house, and its long presence.” “The proposed demolition of the building will remove that contribution, and thereby diminish the development on which the significance and the listing of the HCA is founded.”

35. The experts agreed that the fabric of the original house constructed in c1890 remains in the northern rooms and northern façade and that the eastern end of the house and the infill of the rear courtyard and garage are later additions. They agreed that the architect of the original house is unknown. In Mr Moore’s view, the integrity of the original is not diminished by the later alterations.

36. Mr Moore agreed under cross-examination that the existing house is not as imposing as a “grand residence” referred to in the Statement of Significance for the Wahroonga CA, but neither is the existing dwelling a worker’s cottage. In his opinion, the dwelling is a house of prestige in a garden setting and it retains the capacity to tell its story and flesh out the story of the Wahroonga CA, despite the subdivision. It is Mr Moore’s evidence that these more modest houses within the Wahroonga CA are a crucial part of the significance of the area as they provide the built context for the grand residences.

37. Mr Moore does not consider that the existing dwelling reaches the threshold for local heritage listing under the NSW Heritage Assessment Criteria (“Assessing Heritage Significance” NSW Heritage Office publication 2001). I do note that the Heritage Assessment Criteria is not designed to test the contribution a building or place makes to the collective significance of a HCA and so the demolition of a contributory building is not justified by an assessment that it does not meet the threshold for listing as an item of local heritage.

Findings

38. I agree with Mr Moore’s opinion that the lack of visibility of the existing dwelling from the public domain because it is located on a battle-axe allotment does not necessarily preclude the building from contributing to the heritage significance of the Wahroonga CA. Buildings that are on battle-axe allotments may contribute to the collective heritage significance of a HCA because they are part of the fabric and history of the development of an area, whether or not they are seen from the public domain. Clause 5.10(4) of LEP 2015 requires consideration of the effect of the proposal on the heritage significance of the area. Eroding the heritage significance of contributory buildings and heritage items results in the cumulative loss of heritage values and impacts on the setting of contributory buildings and heritage items; whether or not those unsympathetic changes can be viewed from the public domain or from another contributory building or heritage item in the vicinity of the site.

39. I am, however, on the basis of all of the evidence before me, persuaded that the demolition of this dwelling will not have a detrimental impact on the heritage significance of the Wahroonga CA.

40. The original fabric of the existing dwelling, as agreed by the experts, dates from a key period of development in the Wahroonga CA and it is designed in the Federation style, identified as a key architectural style of the Wahroonga CA. There are elements of the original garden setting of the dwelling that contribute to the landscaped character of the locality. The existing dwelling, however, does not make an important contribution to the heritage significance of the Wahroonga CA primarily because the 1965 subdivision carved off the entire front garden and setting of the dwelling, altering the original form of the dwelling in its garden setting in a way that makes that original form difficult to recognise and impossible to reinstate. The subdivision of the property fundamentally and detrimentally encroached on the curtilage of the dwelling and eroded its garden setting, so that it is not possible to appreciate the dwelling as “a house of prestige in a garden setting” as described by Mr Moore, without mentally reconstructing its original garden setting and relationship to Braeside Street. The northern, front elevation of the dwelling can only be appreciated at close range, from the end of the access handle, because of the position of the shared boundary created by the subdivision, as the dwelling sits on the northern portion of the site and the 1970s dwelling on the adjoining lot sits on the southern portion of its lot.

41. It is not simply that the subdivision and development of the alienated lot resulted in obstructing any views of the Federation style northern elevation from the public domain and because one cannot see the house from the public domain therefore it does not contribute to one’s appreciation of the Federation era development in the Wahroonga CA; it is that the alienation of the front garden of the dwelling significantly impinges on its setting and as a consequence, on its contribution to the visual character of Braeside Street.

42. I accept and agree with Mr Moore’s evidence that the more modest houses that date from the key periods identified and located within the Wahroonga CA are a crucial part of the significance of the area as they provide the built context for the grand residences. This is consistent with the note in KDCP, “contributory buildings do not necessarily need to be high-quality buildings but should represent the key historical period of the HCA”. The existing dwelling, however, does not contribute to the immediate setting of grand period residences, or form one of a group of modest period houses. The adjoining heritage item at 31 Braeside Street is a very recent addition to the streetscape and does not relate in any way to the existing dwelling on the site.

43. The building sitting in what remains of its garden setting does not exhibit any of the characteristics listed in the three numbered paragraphs of characteristics identified in (i), (ii) and (iii) of “What is a contributory property?” in KDCP, quoted at [14]. Although some of the fabric of the building dates from the key periods of significance of the Wahroonga CA, the contribution that the original and early fabric of the dwelling might have made to the heritage significance of the Wahroonga CA has been sufficiently eroded by the later subdivision of the property and to a lesser extent by the accretions to the building so that its contribution cannot now be characterised as important. The original property has been significantly altered by its subdivision and the setting of the original and early dwelling cannot be reasonably reinstated. Finally, the irreversible incursion into the curtilage of the dwelling was insensitive to the form of the original.

44. It is my view that any value in retaining the remaining components of the existing building and site that constitute the original and early fabric is outweighed by the modest nature of that original and early fabric; the extensive and less sympathetic later alterations and additions to the building both externally and internally; the detrimental impact of the subdivision on the setting of the building; and the fact that the original portion of the northern elevation cannot be appreciated in a garden setting and cannot be seen from the public domain. The existing building on the site does not make an important contribution to the character and significance of the Wahroonga CA and is not a contributory property within the meaning of a contributory property in KDCP. I am satisfied that the existing dwelling and its outbuildings can be demolished.

Impact of the proposed new dwelling on the heritage significance of the Wahroonga CA

45. The Council raises two principal contentions regarding the replacement dwelling. Firstly that its orientation is contrary to the established alignment pattern within the Wahroonga CA and secondly, that the colours and materials of the new dwelling will not complement the character and significance of the Wahroonga CA.

46. To address the second part of this contention, the Council proposes conditions of consent at 26-31 (Ex 6) to require the walls to be constructed in face brick and nominates Bowral Bricks “Capital Red” or Bowral Brown”, the window frames and garage to be painted in Dulux “Portland Stone” or “Brewster Green”, the driveway to be brown or red rolled gravel and the roof cladding to be Monier Marseille profile terracotta tiles in “Earth”, “Sunset” or “Cottage Red”. The applicant opposes these conditions and wants rendered and painted masonry walls, a light monochromatic colour on the window frames and garage door, stone coloured gravel on the driveway and slate with mitred ridge capping roof cladding (Ex K).

47. According to Mr Brooks, the new dwelling will be barely discernible from the street and as such it will have no impact on the streetscape or the character of the Wahroonga CA, because it is not an “active member of the streetscape”. Mr Brooks believes that the house is a well-executed example of its style, which he described as “self-confident” and “Inter-War Georgian with a touch of Mediterranean”, similar to a contemporary dwelling nearby. Mr Brooks noted that tennis courts are a feature of the Wahroonga CA.

48. Mr Moore does not believe that the new dwelling will be a comfortable addition to the Wahroonga CA. In his opinion, the scale and bulk is accentuated by the architectural character and the large, long building is contrary to the pattern of house placement in the area. Mr Moore said that his contribution to the conditions of consent changing the finishes of the proposal is confined to the face bricks nominated by condition 26.

49. Mr Hemmings SC submits that Mr Moore’s evidence regarding the appearance of the proposal amounts to a personal or subjective preference as it is not based on research or analysis and as such, it cannot be tested.

Findings

50. The orientation of the building envelope on the site is similar to a number of neighbouring properties, including the adjoining dwelling at 25 Braeside Street. The difference is that the entry to the new dwelling is located on a “side elevation”, the western elevation, instead of being located on the northern elevation facing towards Braeside Street. Locating the entry on the western elevation has allowed the site to be configured with the semi-private entry progression and driveway on the western side of the dwelling aligning with the driveway entry along the access handle and the private open space on the eastern side of the dwelling. This configuration allows for a north-south oriented tennis court on the eastern side of the dwelling, which has most likely generated the proposed site layout. I am satisfied that the new layout of the site is a logical response to the constraints and opportunities of this somewhat unique property and that it will not have a detrimental impact on the heritage significance of the Wahroonga CA, because the orientation of the building envelope is similar to the orientation of many of its neighbours and because being a battle-axe allotment, there is no imperative for the new dwelling to present an entry façade facing the street. The superior amenity of a tennis court orientated north-south sufficiently justifies the proposed site layout, where the new dwelling is barely visible from the public domain and where the building envelope does not result in any amenity impacts on adjoining or neighbouring properties.

51. I accept the agreement of the planning experts that the proposal does not result in unreasonable amenity impacts on adjoining development and I am satisfied that the proposed new dwelling is appropriate scaled for this very generous suburban site.

52. I accept Mr Hemmings SC’s submission that the Council’s changes to the materials and colours of the proposal by way of condition amounts to a subjective preference. On the basis of the evidence in Exhibit G, the contemporary dwellings within the area, including the Wahroonga CA, exhibit a range of styles, materials, finishes and colours. I am satisfied that the proposed materials and finishes will not have a detrimental impact on the heritage significance of the Wahroonga CA because there are many examples of rendered and painted houses in the area and they are generally in harmony with and appropriately deferential to the dominant character in Wahroonga created by the grand Federation residences in large landscaped gardens.

53. Having considered the effect of the proposal on the heritage significance of the Wahroonga CA, I am satisfied that the siting of the new dwelling respects the established pattern of built elements in the streetscape and Wahroonga CA and that the proposal does not adversely impact on the immediate streetscape or significant views within the Wahroonga CA.

Conclusion

54. The existing building on the site does not make an important contribution to the character and significance of the Wahroonga CA and is not a contributory property within the meaning of a contributory property in KDCP. I am satisfied that the existing dwelling and its outbuildings can be demolished.

55. I am satisfied that the siting of the new dwelling respects the established pattern of built elements in the streetscape and the Wahroonga CA and that the proposal does not adversely impact on the immediate streetscape or significant views within the Wahroonga CA.

56. The colours and materials proposed for the new dwelling will not detrimentally impact on the heritage significance of the Wahroonga CA.

Orders

57. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than Exhibits 1, A and B, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 28 March 2019