Zdrilic v Ku-ring-gai Council

[2019] NSWLEC 1604

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zdrilic v Ku-ring-gai Council [2019] NSWLEC 1604
Hearing dates:	7-8 November 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely upon the amended plans marked Exhibit A, and as further amended in Exhibit L. (2)   The appeal is upheld (3)   Development consent for Development Application No. 0590/17 for the demolition of existing structures and construction of a new dwelling at 38 Springdale Street, Killara is granted, subject to conditions contained at Annexure ‘A’. (4)   All Exhibits are returned, except for Exhibits A, B and L.
Catchwords:	DEVELOPMENT APPEAL – heritage conservation area – whether the site is a contributory property – Federation and Inter War character – Springdale Heritage Conservation Area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ku-ring-gai Local Environmental Plan 2015
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Texts Cited:	Ku-ring-gai Development Control Plan 2015 Standards Australia, Australian Standard AS2870 - Residential Slabs and Footings, (2011)
Category:	Principal judgment
Parties:	Tony Zdrilic (First Applicant) Katrina Zdrilic (Second Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: M Staunton (Applicants) A Hudson (Solicitor) (Respondent)   Solicitors: Sattler & Associates (Applicants) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/75263
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr Tony Zdrilic and Ms Katrina Zdrilic are the owners of No. 38 Springdale Road, Killara. They are appealing the refusal by the Ku-ring-gai Local Planning Panel of Development Application No. 0590/17, under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’), for the demolition of existing structures and construction of a new dwelling.

2. The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (‘LEC Act’) on 7 November 2019 which commenced with an onsite view under s 34(1) of the LEC Act between the parties, at which I presided.

3. As is its usual practice, the proceedings commenced onsite with the parties and the experts. No public submissions were heard. The Court viewed the site, a portion of the Springdale Road streetscape, and a dwelling under construction in Kardella Avenue which has garaging for two vehicles below.

4. The conciliation conference continued after the onsite view. However as the parties failed to reach agreement on the issues in contention, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act, and proceeded forthwith to hearing. The parties consented to material discussed during the conciliation conference being relied on in proceedings.

5. At the commencement of the hearing, the Applicant sought leave (unopposed) to rely on amended plans that incorporated discussions held during the conciliation conference and were marked as Exhibit A.

6. The amendments can be summarised as follows:

• Excavation associated with basement and driveway deleted.

• Roof form, and openings at the first floor revised.

• Amendments to first floor and ground floor layout with resulting amendments to the façade.

• Amendments to materials, finishes and detailing.

7. As a result of the amended plans, the parties agreed that the remaining contentions relate to the demolition of the property and the impact on the heritage significance of the heritage conservation area, and an exceedance of the allowable floor space ratio (FSR), for which a written request made pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP) has been prepared and marked Exhibit K.

8. As the matters for consideration relate to heritage, oral evidence was required by Mr Stephen Davies, for the Applicant, and Ms Leona Goldstein for the Respondent. As the structural integrity of the existing building is a related matter, oral evidence was also provided by Mr Harry Gohil, for the Applicant, and Mr Andrew Konstantinoff for the Respondent.

9. The parties also engaged experts to address town planning matters. Mr Vaughan Milligan for the Applicant, and Mr Stuart Ratcliff for the Respondent prepared a joint expert report marked Exhibit 3 and reached agreement that the written request adequately addressed the exceedance of the FSR.

Consideration

10. The site is located within the ‘Springdale Heritage Conservation Area (C21)’ (Springdale HCA), as identified in Schedule 5, Part 2 of the KLEP, but the experts are not agreed as to whether the dwelling on the site is considered a contributory building as defined by Part 19B of the Ku-ring-gai Development Control Plan 2019 (KDCP).

11. In the absence of a map or other schedule published by the Council, the Court relies on the heritage experts to consider whether the site is a contributory property.

12. The definition of a contributory property is found at the Introduction to Part 19 of the KDCP and is in the following terms:

“…For the purpose of this DCP, Contributory Properties are buildings and sites within a HCA which 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.”

13. Provisions relating to heritage conservation are found at cl 5.10 of the KLEP. The objectives underlying the provisions are, relevantly:

a) to conserve the environmental heritage of Ku-ring-gai

b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views

…

14. Consent is required for the demolition of a building within a heritage conservation area pursuant to cl 5.10(2)(a)(iii), and is also required for erecting a building on land located within a heritage conservation area pursuant to cl 5.10(2)(e)(i).

15. However, before granting consent, the consent authority, or the Court on appeal, must consider the effect of the proposed development on the heritage conservation area, as set out in cl 5.10(4) of the KLEP.

16. The KDCP contains provisions relating to development in Heritage Conservation Areas, at Part 19B.1 ‘Demolition within HCAs’. The objectives are as follows:

“Objective 1: To ensure that sites, buildings and landscape features that contribute to the significance of an HCA are retained.

Objective 2: To provide a photographic record before and during major works within an HCA, including demolition.”

17. The controls at Part 19B.1, provide, relevantly:

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

Control 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.”

18. Mr Staunton considers Part 19B.1 to relate only to heritage items and contributory properties which permit demolition if certain conditions are met.

19. In particular, he relies on Part 19B.1, Control 1 as evidence that the provision relates only to Heritage items and contributory properties within Heritage Conservation Areas, and as the subject site is not a contributory property, there is no further work for the provision to do.

20. Furthermore, he submits that for Part 19B.1, Control 2 to be read as a prohibition on the demolition of buildings in an HCA would make the KDCP inconsistent or incompatible with the provisions of cl 5.10(2) of the KLEP which permit demolition of buildings, including heritage items and contributory buildings, with consent.

21. However my reading of the objectives and controls under Part 19B.1 is that Control 1 provides guidance on Heritage items and contributory properties, and Control 2 provides guidance on all other buildings in a Heritage Conservation Area, and is to the effect that demolition is supportable if an applicant can satisfactorily demonstrate those things set out in sub s (i)-(iv) of Control 2, and so serves as a guide to applicants in the preparation of a development application that seeks consent under cl 5.10(2) of the KLEP.

22. Clause 5.10(4) requires that I consider the effect of the proposed development on the heritage significance of the Springdale HCA. In order to understand the effect of the proposed development on the Springdale HCA, I will first consider the evidence of the heritage experts in relation to the contribution the site makes to the Springdale HCA.

23. The Statement of Heritage Significance for the Springdale HCA is expressed in the joint report as follows:

“The Springdale Conservation Area has historic significance as part of the [sic] Jane Bradley’s 1839 160 acre land grant whose boundaries are evident through the following streets: Karanga Avenue, Locksley Street, Roseberry Road and Stanhope Road. The area has aesthetic value for the high number of intact Federation and Inter-war buildings. The houses are almost exclusively detached residences, with only few exceptions. The area has groupings of Federation and Interwar housing. Architectural styles present include Federation Queen Anne, Arts and Crafts and Bungalow, and Interwar Old English, Spanish Mission, Mediterranean and Californian Bungalow. Many houses retain period landscape features including sweeping drives, borders of mixed shrubberies and planted out beds”

24. The experts agree that the existing house was originally a Federation Bungalow that has, during the inter-war period, been altered to include a rendered finish over the original face brick, a modified verandah with masonry columns, a porte cochere to the side, and entry porch. Around 1983 further alterations were completed to the rear, including an open plan kitchen and living area.

25. The Applicant relies on a Heritage Assessment and Statement of Heritage Impact prepared by Mr Colin Israel (Heritage Assessment) contained within the Class 1 Application (Exhibit B). The joint expert heritage report contains images taken from the Heritage Assessment, including Figure 23 which appears on page 5 of the joint expert heritage report and shows the stages of alterations that are agreed by the experts.

26. Ms Goldstein is of the view that the six rooms which form part of the original dwelling can and should be retained, and that new additions could be designed that are located to the rear of the site, with basement access set back from the street. An indicative sketch is included in the joint expert report (Exhibit 4, p 11).

27. To Ms Goldstein, despite the substantial alterations made to the dwelling, it is still recognisable as one of the older houses in the area and contributes to the established history, housing and pattern of development which in turn, supports the heritage significance of the Springdale HCA through its character and amenity as a place with aesthetic value.

28. It is the evidence of Ms Goldstein that the existing dwelling is old, and its removal will erode the character of the Springdale HCA.

29. The Respondent submits that the character of the existing dwelling is formed by the layers of alterations and that it is the very ‘togetherness’ of the Federation and Inter War characteristics that may be considered to define the ‘original’ building whose integrity is at risk.

30. Ms Goldstein opines in the joint report that the various phases of alterations are an essential part of the ‘integrity’ of the house. However, in her oral evidence, Ms Goldstein states that she does not see the building as a Federation Bungalow, but as an Inter War building. Later, Ms Goldstein tells me that she regards the existing dwelling to be a ‘make over’ of a Federation Bungalow.

31. As Mr Davies is of the view that the characteristics of the Federation Bungalow have been lost or removed, I consider the experts to be essentially agreed that the dwelling is primarily an example of an Inter War building, and so the question then is whether the building makes a contribution to the Springdale HCA for its Inter War character.

32. Mr Davies considers the building is not a notable representation of the Inter War period, is not high-quality, and as the alterations are not reversible, the building cannot be reasonably reinstated to a condition that would contribute to the Springdale HCA.

33. Ms Goldstein’s sketch, contained in the joint report at p 11 shows possible alterations and additions to the existing dwelling, and includes a new verandah with Federation characteristics. While I acknowledge Council’s indicative sketch is just that, in my view the indication of a Federation-style verandah on a building that is agreed to be predominantly Inter War is representative of an essential ambiguity that lies at the heart of the Respondent’s argument.

34. While I agree with Ms Goldstein’s statement that the removal of old buildings can change the character of a place, I accept and prefer the evidence of Mr Davies that the building is not recognisable for its original characteristics, that it could not be reasonably reinstated to that condition, and that the alterations are considered to be detrimental to the integrity of the building as the Inter War additions to the frontage are not a notable example of the period, as required by definition (ii) of the KDCP set out at [12]. Furthermore, as the experts are agreed that the Inter War additions have the effect of changing the dominant visual character of the dwelling, they cannot be said to be in a style and materials of the original building, pursuant to definition (iii) set out at [12].

35. Further, while I accept that it is common for older buildings to undergo alterations in their lifespan, the KDCP caters to such circumstances when it states, at definition (ii) in the introduction to Part 19, that a contributory building may be “…altered from their original form but are recognisable and could be reasonably reinstated to that condition…”. Clearly, the definition seeks a building to be of sufficient integrity that it can be reinstated to that original form in order to be considered a contributory property. In this case, the original form is not recognisable, and I am satisfied that work to reinstate the building to its original form would require a complete rebuild, given evidence as to the soft bricks and mortar that would pose a challenge to removing render and other later modifications.

36. I also consider the definitions of a contributory building at Part 19 of the KDCP to be premised on a building representing a singular character, style or trait of a period, and not a fusion, or a ‘togetherness’ of characters, styles or traits. I regard the note associated with the definitions to be instructive when it states: “Contributory buildings do not necessarily need to be high-quality buildings but should represent the key historical period of the HCA…” (my emphasis).

37. While the Statement of Heritage Significance for the Springdale HCA at [23] clearly states a mix of different periods and styles, it is generally held that a building would represent one of those periods or styles, and not an amalgam of two or more when being defined for purposes of its heritage contribution or significance. I cannot accept the Respondent’s position that it is the combination of Federation and Interwar features in this one building that can be regarded as embodying the ‘integrity’ of this site.

38. For the reasons set out above, I find that the existing building does not meet the definition of a contributory property as set out by the KDCP.

39. However, for the reasons set out at [21], it is my reading of the KDCP that development applications seeking to demolish a building in a Heritage Conservation Area should satisfactorily demonstrate those things set out at Part 19B.1, Control 2.

40. Part 19B.1, Control 2(i) of the KDCP requires that demolition not result in any adverse impacts on the streetscape or character of the HCA.

41. As I do not consider the site to meet the test required of a contributory property, it follows in my mind that the demolition of the existing dwelling, which can be said to make a neutral contribution to the Springdale HCA, will not result in any adverse impacts on the streetscape or character of the HCA.

42. Part 19B.1, Control 2(ii) of the KDCP requires that the Applicant satisfactorily demonstrate that retention and stabilisation of the building or structure is unreasonable.

43. The structural engineering experts are agreed that the existing foundations are affected by variability in soil moisture caused by surface water, roof water from downpipes that are not connected to a subsurface piped system, and sub-surface seepage. The result is cracking and movement in the sandstone foundation which has a shallow footing of only around 300mm into the soil, and cracking in the brickwork supported by the foundations.

44. The experts also agree that the best solution is to underpin the existing foundation, which they agree is ‘uneconomical’, and which Mr Konstantinoff, who is an engineer and licenced builder, has estimated would be a cost in the order of $690,000. In the alternative, Mr Kostantinoff proposes a reinforced contemporary footing.

45. Mr Gohil proposes soil stabilised foundations that are estimated to cost in the order of $235,000, which the Respondent submits is not unreasonable when considered against the construction estimate of $2,585,000 entered in the original Development Application (Exhibit B).

46. The relevance of the condition and integrity of the foundations go to whether retention of the existing dwelling is justified or not. According to Mr Gohil, a number of options exist that would retain the foundations, are commonly used, cost-effective, and could remove or mitigate the movement and cracking, and be undertaken as part of any development on the site.

47. For example, connecting the downpipes to sub surface drainage would substantially stabilise the soil moisture during periods of rain. Additionally, a subsurface drainage trench, lined with a clay-based cellular geotextile barrier, would collect subsurface and surface water to create a ‘dry island’ in which the existing foundations would sit.

48. However Mr Konstantinoff is of the view that, for the house to remain with its existing footings, it requires the removal of any mature trees within a distance of the footing that is equal to their height, and would also require a 2m wide concrete path to direct water away from the footings, and relies on advice from the CSIRO appended to Exhibit E to this effect.

49. Mr Gohil cites his experience with invasive roots of mature trees which can be, in effect, ‘trained’ to grow towards alternative sources of water as a means of mitigating structural damage in existing buildings, and he sees this as preferable to the removal of trees.

24. While I acknowledge Mr Konstantinoff’s advice on the removal of any mature trees within a certain distance of the footing is based in the Standards Australia, Australian Standard AS2870 - Residential Slabs and Footings, (2011) (which was not entered in evidence), I consider this to be a general provision that, if relied on, should be supported with site-specific investigation such as root mapping that would provide valuable intelligence on the size, location and likely depth of roots within the structural root zone. This was not done.

25. Mr Konstantinoff also asserts that the soil is highly reactive, but accepts this is an assumption made on the basis of a 450mm deep pit dug on site and his own observations, and is made without the benefit of geotechnical advice. The relevance of this is that he cites the CSIRO report to suggest that a concrete path of 2m width would be required to protect the existing foundations if they were retained.

26. In fact, the CSIRO report states a path width of 900mm is advised, except in highly reactive soils where a larger dimension may be appropriate. There is nothing in the CSIRO report that suggests the width of the path would be more than doubled in this event. According to Mr Gohil, the soil is more likely to be moderately reactive, although in the absence of geotechnical investigation, the Court is unable to be certain.

27. While I accept that the Applicant has sought structural engineering and cost advice on options for footings, in my view the Applicant’s investigations are not comprehensive. For example, when asked, Mr Konstantinoff accepts that a steel structure with localised piers could support a first floor, and provide earthquake stiffening and would serve to retain part or most of the existing external fabric of the dwelling. However, Part 19B.1, Control 2(ii) of the KDCP does not require that an applicant ‘comprehensively demonstrate’, but only ‘satisfactorily demonstrate’ that the retention and stabilisation of the building or structure is ‘unreasonable’ and not does require the Respondent to show it is ‘possible’.

28. Part 19B.1, Control 2(iii) of the KDCP requires that all alternatives to demolition be considered with reasons provided as to why the alternatives are not acceptable. As the emphasis is on ‘all’ alternatives, it would seem reasonable to expect applicants explore design alternatives that retain a portion or portions of fabric that might be regarded as having historic value regardless of a site’s statutory heritage status. In this case, the Applicant’s alternatives are evident, although somewhat limited to engineering advice alone, and no alternative plan layouts were submitted to demonstrate alternatives that retain part or most of the existing fabric.

29. In relation to Part 19B.1, Control 2(iv), which requires that a replacement building be compatible with the significance and character of the streetscape and the HCA as a whole, I note that as a consequence of significant amendments made in the conciliation phase of the proceedings, the heritage experts are substantially agreed that the replacement building meets this test.

30. On the basis of the above, and on balance, I consider the Applicant to have met, but not exceeded, the threshold requirements of Part 19B.1 Control 2. In arriving at this conclusion, I place significant weight on the reasons set out at [38] and [41] in relation to Control 2(i), and the agreement of the experts that the replacement building is compatible with the identified significance and character of the streetscape and the HCA as a whole, which is further supported by the agreement of the experts of further refinements in the form, materials and detailing detailed in Exhibit L which satisfies Control 2(iv).

31. In considering the effect of the proposed development on the Springdale HCA as required by cl 5.10(4) of the KLEP, it is my view that neither the demolition of the existing building or the construction of the new dwelling will have an adverse effect on the Springdale HCA and does not warrant refusal of the application.

32. However as the proposal exceeds the maximum FSR permitted by cl 4.4 of the KLEP, consent must not be granted unless I am satisfied that a written request made pursuant to cl 4.6 of the KLEP adequately addresses the matters for consideration in cl 4.6 (4)(a)(i) and (ii).

33. Clause 4.6(4) of the KLEP establishes preconditions that must be satisfied before I can exercise the functions of the consent authority and can exercise the power to grant development consent under cl 4.6(2): Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [13] (“Initial Action”).

34. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). Firstly I must be satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3) and secondly, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

35. Clause 4.6(4)(b) requires that I am also satisfied that the concurrence of the Secretary has been obtained, notwithstanding that the Court has the power to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) of the KLEP (Initial Action at [29]).

36. The Applicant’s written request is prepared by Mr Vaughan Milligan and is marked Exhibit K. The town planning experts are agreed that the request adequately addresses the relevant matters in cl 4.6(4) of the KLEP.

37. The request seeks to justify a contravention of the FSR development standard. Clause 4.4(2) of the KLEP specifies a maximum FSR for the site of 0.339:1. The proposal is measured as having an FSR of 0.36:1 which is an exceedance of 25.7m² or 6.21%.

38. The objectives of the FSR development standard are in the following terms:

“(1) The objectives of this clause are as follows—

(a) to enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship,

(b) to provide for floor space ratios compatible with a range of uses.”

65. The written request seeks to justify the contravention of the development standard in cl 4.4 of the KLEP by demonstrating that compliance with the standard is unreasonable or unnecessary in the circumstances of the case as the objectives of the development standard are achieved. The reasons relied on are summarised as follows:

1. The built form and density, being a function of development standards, and the objectives and controls in the KDCP, complies with the maximum building height and wall height.

2. The contextual relationship of the street can be said to generally comprise dwellings of a lower scale of one and two-storey forms, and with floor space disguised in the roof form. The proposed replacement building is compatible with its contextual relationship because:

• It demonstrates a complying setback from the street, being more than 12m.

• It is of a similar height to the adjoining property at No 42 Springdale Street. The topmost RL of the proposed replacement building, is 120.714, which relates to the adjoining property at No 42 Springdale Street which has a topmost RL of 120.58

66. I am satisfied that the written request demonstrates that strict compliance with the development standard is unreasonable or unnecessary as required by cl 4.6(3)(a). In arriving at this opinion of satisfaction, I also rely upon the agreed positions of the parties, and as stated on p 6 of the written request, that Ku-ring-gai Council permits a concession of 31m² for required carparking, and that, in effect, this concession is greater than the area of non-compliance.

67. Next, the written request seeks to demonstrate there are sufficient environmental planning grounds to justify the contravention of the development standard because:

• The exceedance of the FSR does not reduce the amenity of other dwellings in the area through unreasonable overshadowing as the additional shadow impact falls on a driveway of the adjoining property, and is not a result of the non-compliance.

• There are no adverse impacts on streetscape as the presentation of the replacement building is determined by height, form, design, materials and finishes that are unrelated to the exceedance.

68. In accepting that there are sufficient environmental planning grounds advanced by the Applicant in the written request, I also give weight to the agreement by the experts that the proposed replacement building is compatible with the identified significance and character of the streetscape and HCA.

69. I am satisfied that the proposal is consistent with the objectives of the FSR development standard, and with the objectives of the R2 Low Density Residential zone which 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.

70. I am also satisfied that there are no issues for which the Secretary’s concurrence could not be assumed, pursuant to cl 4.6(5) of the KLEP, and so I find that the written request has adequately addressed those matters on which I am required form an opinion of satisfaction.

Orders

71. The orders of the Court are:

1. The Applicant is granted leave to rely upon the amended plans marked Exhibit A, and as further amended in Exhibit L.

2. The appeal is upheld.

3. Development consent for Development Application No. 0590/17 for the demolition of existing structures and construction of a new dwelling at 38 Springdale Street, Killara is granted, subject to conditions contained at Annexure ‘A’.

4. All Exhibits are returned, except for Exhibits A, B and L.

…………………………

T Horton

Commissioner of the Court

Annexure A (124 KB)

Landscape Plan (3.78 MB)

Architectural Plans (2.03 MB)

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Decision last updated: 16 December 2019