Zobon Australia Pty Ltd v Mosman Council

[2020] NSWLEC 1627

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zobon Australia Pty Ltd v Mosman Council [2020] NSWLEC 1627

Hearing dates:

19-20 November 2020

Date of orders:

10 December 2020

Decision date:

10 December 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application No. 8/2019/77/1 for the substantial demolition of the existing dwelling, construction of a new 4 storey dwelling, swimming pool and double garage, at 5 Morella Road, Mosman, is refused.

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

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to an existing building – local heritage item – existing dwelling is in ruinous condition – impact on the heritage significance of the local heritage item – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – the temporary roof over the existing dwelling installed for weather protection is not part of the building for the purpose of the assessment of the proposed development

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Mosman Local Environmental Plan 2012

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Helou v Strathfield Municipal Council (2016) 144 LGERA 322; [2006] NSWLEC 66

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Australia International Council on Monuments and Sites, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance (2013)

Mosman Residential Development Control Plan 2012

NSW Heritage Office, Assessing heritage significance, (July 2001)

Category:

Principal judgment

Parties:

Zobon Australia Pty Limited (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Holding Redlich Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2019/303142

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. 8/2019/77/1 for the substantial demolition of the existing dwelling, retention of some external walls, construction of a new 4 storey dwelling including a swimming pool, a separate double garage structure, a new front fence, tree removal and landscaping (the proposal) at 5 Morella Road, Mosman (the site) by Mosman Council (the Council).

2. The provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act) applied to the proceedings. The appeal commenced onsite, with a view of the site and environs. Because the parties agreed that there was no prospect of reaching an agreement, the conciliation was terminated following the onsite view and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The hearing was conducted via Microsoft Teams.

3. Leave was granted by the Court on 12 March 2020 for the applicant to amend the application to rely on an amended proposal (Ex B).

Issues

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

• The proposal does not satisfy the heritage objectives of cl 5.10(1) of the Mosman Local Environmental Plan 2012 (LEP 2012) to conserve the heritage significance of heritage items and heritage conservation areas including associated fabric, settings and views;

• The proposed gross floor area is excessive and the written request to vary the floor space ratio (FSR) development standard is unsatisfactory;

• The proposed building height is excessive and the written request to vary the height of buildings development standard is unsatisfactory;

• The proposed wall height is excessive;

• The proposed bulk and scale is excessive;

• The proposal would result in an unacceptable loss of views from 10 Morella Road;

• The setbacks are insufficient;

• The overshadowing caused by the proposal is excessive;

• The number of storeys is excessive;

• The landscaped area is insufficient;

• The proposal does not satisfy the requirements for a scenic protection area.

5. The applicant’s version of the conditions of consent (Ex D) struck out several conditions of consent (Ex 6) which were pressed by the Council.

The site and its context

6. The site is on the eastern side of Morella Road and falls almost 16m to the east. The site overlooks Chowder Bay and Clifton Gardens Reserve. The site is adjacent to Sarah’s Walk, a public walkway between Morella Road and Taylor’s Bay Track and the rear boundary is shared with Taylor’s Bay Track.

7. The site has an area of 893.1sqm and is irregular in shape with a frontage to Morella Road of 15.24m.

8. The Council described the site as containing the following (Ex 1, par 2.4):

“The site presently contains a two storey (plus laundry and shower under) dwelling house with roof top terrace, and single garage at the property frontage with storage under. A metal roof has been constructed over the top of the building for the purposes of weather protection. This metal roof is a temporary measure and is not an approved element. Accordingly, any reference to the existing building envelope cannot include or rely on this temporary roof structure”.

9. The applicant submitted that the existing dwelling is four storeys, by dint of the metal roof constructed over the dwelling for the purpose of temporary weather protection and the definition of ‘storey’ in the Dictionary of LEP 2012.

The condition of the existing dwelling

10. The existing dwelling was designed by the architect Eric Nicholls and built in 1938. The existing dwelling is ruinous.

11. The condition of the structure of the existing dwelling is described in detail in a letter dated 30 July 2019, written by Simon Wiltshier, structural engineer and Technical Director of Mott MacDonald Australia Pty Ltd (Ex B, Folder 2, tab 3.3). Mr Wiltshier is the immediate past Chair of Engineer’s Australia Sydney Division Heritage Committee and specialises in the investigation, assessment, repair and conservation of historic buildings and structures. I accept this (documentary) evidence because it was not contested by the Council. Mr Wiltshier’s advice is, in summary:

• The building is in a highly deteriorated condition. All floors and the roof require replacement, with little salvageable original material expected to be found in either the floors or the roof. The structural condition of the building would require substantial demolition, including the curved eastern façade at ground and first floor levels. The curved southern section of the east façade would need to be dismantled and re-erected on a new footing to provide structural adequacy with an appropriate level of durability. All footings would require careful review and the majority would require underpinning or where underpinning is unfeasible, dismantling and re-construction on new footings would be required.

• The ground floor concrete slab, which is fundamental to the support of structures above, is unrepairable because of the extent of damage and remediation is impractical.

• The timber structures at roof, first floor and ground floor have been exposed to the weather for an extended period and there is extensive timber decay and termite attack. All floor boards would need replacement and upper floor joists. It is possible that there may be some salvageable ground floor joists and bearers however it would be necessary to carry out complete dismantling to inspect and approve any timber for re-use. A primary steel roof beam in the east façade needs replacing.

• Virtually every lintel in the building requires replacement. The new lintels will not match the original flawed design as they will be constructed from stainless steel.

• The steelwork supporting parts of the structure are heavily corroded and would require removal to assess, repair and repaint or to replace.

• The bricks are well fired, hard and durable. The mortar would require general repointing for long term durability. Brickwork cracking is caused by the failure of the support structure. There are decorative carved and/or moulded inserts and wall panels set within the masonry. These require more detailed inspection, however, generally appear to be in a condition that would require them to be salvaged if required. They do not appear to have been originally properly secured. Large areas of walling would require dismantling and reconstruction to carry out effective repairs with an outcome of long-term durability.

• The sandstone is not of high quality and was possibly locally quarried. The potential for stone salvage and re-use appears to be limited.

• Surface and sub-surface drainage is inadequate. There is hydrostatic pressure behind retaining walls and rising damp, which will progressively degrade the stone and mortar.

• All electrical and plumbing services require replacement.

• Underpinning is required because existing footings are not founded on rock.

• The garage requires replacement.

The proposal

12. The proposal includes the following (Ex B, Folder 2, tab M, DA-120, DA-130 to 133, DA-210 to 214, DA-301-303, DA-400):

• Substantial demolition of the existing building. Retention of a section of the external masonry façade on the western corner (DA-130);

• Retention of (part) of the fireplace in the former lounge on the ground and first floor (DA-131 to 132);

• Lower ground floor changed from RL 24.46 to RL 23.6: construction of a rumpus, lounge, study, store and outdoor terrace and swimming pool;

• Ground floor changed from RL 27.37 to RL 27.0: construction of entry lobby, three bedroom suites and terrace (matching the plan of the existing terrace);

• First floor changed from RL 30.39 to RL 30.1: kitchen, dining, living and upper terrace;

• Second floor changed from the existing roof terrace at RL 33.58 to RL 33.2: construction of a master suite, void over floor below and balcony;

• New double garage at the street front and adjacent to the southern boundary at RL 33.0, over plant and water tank and entry walkway to the first floor;

• New landscaping.

13. The maximum height of the proposal is RL 36.75 (Ex B, Folder 2, DA-400).

14. I do not accept the applicant’s position that the proposal involves only the partial demolition of the existing building and should be characterised as alterations and additions to an existing heritage listed dwelling entailing repair to and reconstruction of approximately 80% of the external walls of the house (Ex A, par 1b). The demolition drawings (Ex B, Folder 2, tab M, DA-130 to DA-133) attest to the fact that very little fabric is proposed to be retained; there is no definite proposal to salvage materials and re-use them; and the new building is not for the reconstruction of the existing building, it is for a new building, with mostly new materials, all floors at new levels, new spatial planning and substantially new elevations.

Planning framework

15. The Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site at cl 3.

16. The site is zoned R2 Low Density Residential pursuant to Mosman Local Environmental Plan 2012 (LEP 2012), and the proposal is permissible with consent. 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 retain the single dwelling character of the environmentally sensitive residential areas of Mosman.

• To maintain the general dominance of landscape over built form, particularly on harbour foreshores.

• To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features.

• To ensure that development is of a height and scale that seeks to achieve the desired future character.

• To encourage residential development that maintains or enhances local amenity and, in particular, public and private views.

• To minimise the adverse effects of bulk and scale of buildings.

17. The height of buildings development standard for the site is 8.5m (cl 4.3 and Height of Buildings Map Sheet HOB_003 of LEP 2012). The objectives for the height of buildings development standard, at cl 4.3(1)(a) of LEP 2012, are:

(i) to share public and private views, and

(ii) to minimise the visual impact of buildings particularly when viewed from the harbour and surrounding foreshores, and

(iii) to ensure that buildings are compatible with the desired future character of the area in terms of building height and roof form, and

(iv) to minimise the adverse effects of bulk and scale of buildings,

18. Clause 4.3A(1) of LEP 2012 applies to all land in a residential zone to which a maximum building height of 8.5m applies as shown on the Height of Buildings Map, which includes the site. Clause 4.3A(2)-(5) is in the following terms:

(2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing).

(3) However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale.

(4) A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres.

(5) In this clause—

dormer window means a window in the roof plane that measures no more than 25% of the width of the roof in that plane.

wall height means the vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.

19. The FSR development standard for the site is 0.478:1 (cll 4.4 and 4.4A(b) and Floor Space Ratio Map Sheet FSR_003 of LEP 2012). The objectives of the FSR development standard at cl 4.4(1)(a) of LEP 2012 are:

(i) to ensure that buildings are compatible with the desired future character of the area in terms of building bulk and scale, and

(ii) to provide a suitable balance between landscaping and built form, and

(iii) to minimise the adverse effects of bulk and scale of buildings,

(iv) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off,

20. The site is a local heritage item (Sch 5, Pt 1 to LEP 2012, item 170 “House and garden”). The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposed development on the heritage significance of the item before granting consent under cl 5.10.

21. Clifton Gardens Reserve, including Sarah’s Walk, is identified as a local heritage item (Heritage Map Sheets HER_002 and HER_003, Sch 5, Pt 1 to LEP 2012, item 402).

22. 17 Morella Road is identified as a local heritage item (Heritage Map Sheet HER_003 of LEP 2012, item 172). The former dwelling at 17 Morella Road, designed by the architectural firm, Ancher Mortlock and Murray, has recently been demolished and a new dwelling has been constructed.

23. The site is identified within the Clifton Gardens Townscape, section 7.4(4) of the Mosman Residential Development Control Plan 2012.

The heritage significance of the existing dwelling

24. The parties agreed that the Statement of Significance contained in the GML Conservation Management Plan (CMP) dated September 2018 accurately summarises the heritage significance of the existing dwelling and garden. The statement of significance (Ex B, folder 1, f 389) is:

“In its local historical context, Morella provides evidence of, and is associated with, the early twentieth-century subdivision and residential development of Mosman, and particularly the larger blocks along Mosman’s harbour frontage. In this regard, the site as a whole retains evidence of the pre-war character of both the architecture and landscape and this area. The site is also significantly locally as the home of the Parer family and their eventful lives, from their prominence in Sydney’s social scene of the 1940s to the more recent decades of the house’s deterioration and leaving the original family’s ownership.

More widely, as well as locally, Morella has been recognised as having historic and architectural/aesthetic significance as a substantial and architecturally notable example of the architectural work of Eric Nicholls and, through him, representing a legacy of his renowned colleague and mentor, Walter Burley Griffin. Morella is currently the only building by Eric Nicholls with the Mosman municipality and was included on the schedule of local heritage items after being first nominated in 1986, based on an earlier listing in the Australian Institute of Architects’ (formerly the Royal Australian Institute of Architects) Twentieth-Century Building List.

Though currently in poor physical condition, and having lost much of its original fabric, Morella retains today (externally at least) the ability to demonstrate Nicholls’ skilful handling of massing and materials and integration of a residential building with its bushland setting, as learnt and developed from Griffin. The surviving components of the building’s original form and massing and the arrangement, fabric and overall character of the external façades are also able to provide meaningful and authentic evidence of the original, despite the level of deterioration and loss.

At the same time, the building’s current poor physical condition, including damage to the point of destabilising its structural safety and integrity, and the effective destruction of much of the original fabric of the interiors, clearly compromise and limit Morella’s potential heritage values and role as a meaningful historic legacy.”

Public submissions

25. One resident objector gave evidence at the commencement of the hearing via MS Teams. The objector is concerned that the fourth level of the proposal will further overshadow his courtyard at 3 Morella Road and the amenity impact on his courtyard is unreasonable because the height, bulk and scale of the proposal are excessive. The courtyard provides an attractive entrance to 3 Morella Road and is an area of private open space accessible from the kitchen and family room. The proposal is not, in his view, the adaptation of the existing house, but is instead the demolition of the existing house and construction of a new house which loosely adopts the existing building footprint. The southern, side setback is insufficient and does not meet the controls. The proposed walkway adjacent to the shared boundary should be setback from the boundary. The proposed new garage is located on the shared boundary and will obstruct two northern windows in the garage at 3 Morella Road.

Expert evidence

26. The applicant relied on the expert evidence of John McFadden (planning) and Peter McKenzie (heritage). The Council relied on the expert evidence of Peter Wells (planning) and Brad Vale (heritage).

The proposal does not retain the heritage significance of the heritage item

27. The fundamental difference between the parties is a disagreement over the effect of the proposal on the heritage significance of the heritage item.

Applicant’s submissions

28. The applicant submitted that the starting point is a ruin in a prestigious location and the proposal is “keeping faith with the original design” although it is not a process of “complete reinstatement of the heritage item”. The applicant submitted that all that can be retained is being retained. Citing the ‘Conservation Policy and Statement of Heritage Impact’ prepared by the architect, Jackson Teece, and dated May 2019 (HIS) (Ex B, Folder 1, tab E), the applicant submitted that there are four options identified for the future life of Morella (the existing dwelling), and the proposal represents option 3. The four options identified (Ex B, Folder 1, f 197) are:

1. Manage the place as a ruin.

2. Reconstruct the place to its configuration when completed in 1938.

3. Adapt and conserve the place as a contemporary residence.

4. Record, demolish and interpret the place. Construct a new residence.

Experts’ evidence

29. According to Mr McKenzie, the conservation approach underpinning the proposal is to retain as much external fabric as possible, based on Mr Wiltshier’s advice. The proposal retains the use of the site as a dwelling house. The proposal includes the adaptation of the interior spaces and exterior fabric for the existing use. The proposal retains the external façades of the western and northern facades and rebuilds, with adaptation, the principal components of the original design. When observed from the public domain to the east, the proposal will retain the original architectural character and features of Nicholls’ design of the east, north and west facades. In Mr McKenzie’s view, the proposal responds to the major constraint of development of feasible, buildable work methods, taking into account the ruinous condition of much of the surviving fabric or the original external walls. The reconstruction of the eastern façade to its original design, without change, fails to account for the condition of the eastern façade, the reasonable expectation of the owner to adapt the existing dwelling to a luxurious residence. According to Mr McKenzie, the proposal maintains the footprint of the existing dwelling.

30. Mr McKenzie said in oral evidence that the eastern façade “needed to be changed to satisfy the client’s brief”. He described the proposal as not slavishly reproducing the original but adapting to contemporary expectations while referencing Eric Nicholls’ architecture.

31. According to Mr Vale, the proposal is a redevelopment of the site resulting in a new house with no heritage significance. The heritage item is not conserved by the proposal. A minority of original fabric is proposed to be retained.

32. Mr Vale identified the eastern elevation, which forms part of the backdrop to Clifton Gardens Reserve and is visible from the coastal walking track, as being the most distinctive and important elevation of Morella. In his view, a great deal is lost by the demolition and replacement of the eastern elevation with a new design. The demolition of the eastern façade and replacement with a different design would result in the proposal being interpreted as a new building when viewed from Clifton Gardens Reserve.

Findings

33. I accept and agree with the applicant’s submission that it would be an ideal outcome for the heritage item to be conserved and adapted to a luxury dwelling, however, I do not accept the applicant’s position that the proposal achieves this outcome. The proposal is for the demolition of the existing dwelling and construction of a new dwelling. There is so little of the existing dwelling retained by the proposal that it would no longer be identifiable as an example of Eric Nicholls’ body of architectural work and it would not reach the threshold for local heritage listing under the NSW Heritage Significance Criteria (‘Assessing Heritage Significance’, NSW Heritage Office publication 2001). For this reason, I accept and agree with Mr Vale’s evidence.

34. There was no dispute regarding the poor structural condition of the existing dwelling. I accept Mr Wiltshier’s opinion that it is not possible to restore the existing dwelling, within the meaning of restoration as defined by the Burra Charter (The Australia ICOMOS Charter for Places of Cultural Significance 2013 at 1.7) as “returning a place to a known earlier state by removing accretions or by reassembling existing elements without the introduction of new material”. Option 3, as identified by the HIS, would require the reconstruction and adaptation of the heritage item, given Mr Wiltshier’s advice that the existing fabric would need to be substantially dismantled and re-erected using salvaged and replacement materials on new footings. Reconstruction is defined by the Burra Charter, at 1.8, “…as returning a place to a known earlier state and is distinguished from restoration by the introduction of new material; and adaptation”, at 1.9, as “…changing a place to suit the existing use or a proposed use.”

35. I do not accept the applicant’s position that the proposal is a necessary response to Mr Wiltshier’s advice. The proposal instead prioritises the developer’s brief over the retention of the heritage significance of Morella. The prominent eastern elevation of Morella is entirely lost by the proposal. I do not agree with the submission that the proposal in any way evokes Eric Nicholls’ distinctive design, because the cascading effect of elements and horizontal emphasis is lost, and all the fabric of the eastern elevation is replaced by a new design. The proposal is merely a tokenistic gesture to the original. The proposal is not the adaptation of the existing dwelling.

36. The proposal does not retain the footprint of the existing dwelling. The swimming pool on the lower ground floor terrace creates a new footprint and interrupts the form and composition of the eastern terrace. The existing eastern terrace, with its rockface finished sandstone, emerges from the ground and creates the platform on the site as an architectural element upon which the contrasting form and finesse of the house sits. The platform is an essential architectural element in the composition of Morella and it is lost in the proposal.

37. The fact that changes were made prior to and during the construction of Morella by the client and/or architect is irrelevant. The process of design and building is a dance between client and architect and a response to constraints and opportunities at that time. Morella was listed as a local heritage item based on the extant building when the statutory listing commenced, and its heritage significance is not diminished by evidence of decisions taken and changes made by the client and architect at the time of its design and construction.

38. The genuine adaptation of Morella into a contemporary and luxurious home is reasonable, and a robust and inventive design response to the genuine reconstruction of the structure and façade for its long-term structural adequacy is acceptable. I agree with Mr Vale’s evidence that the garage can be demolished and replaced with a new and different building and the existing dwelling can accommodate a new spatial layout. A new lower ground level and possibly a fourth floor or a western addition, designed sympathetically and appropriately deferential to the reconstructed fabric of the external façades, would be acceptable, if the proposal retained the heritage significance of the heritage item.

The Helou planning principle is not relevant to this appeal

39. The applicant raised the issue of the difference between the cost of a “heritage rebuild” and a “modern non-heritage rebuild”, as a justification of the proposal, referring to the ‘Economic Evaluation of Construction Alternatives for 5 Morella Road, Mosman’ prepared by Dr Peter Abelson dated 2 March 2020 (Ex B, Folder 2, tab 3.8) and the Court’s Helou planning principle.

40. In Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (Helou) Moore C [as he then was] articulated a planning principle to include the cost of conservation as a factor in deciding whether demolition of a building identified as contributory to the heritage significance of a heritage conservation area is acceptable, as follows:

“46 The following questions should be addressed in assessing whether the demolition should be permitted:

1. What is the heritage significance of the conservation area?

2. What contribution does the individual building make to the significance of the conservation area?

The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought.

3. Is the building structurally unsafe?

Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area.

4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition?

If the answer is yes, the cost of the necessary remediation/rectification works should be considered.

5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted?

If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding.

6. Is the replacement of such quality that it will fit into the conservation area?

If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved.”

41. Although the planning principle in Helou was expressed to apply only to contributory buildings in a heritage conservation area, and not to the demolition of local heritage items, I accept that the Helou planning principle can be of assistance by analogy in identifying that the reasonableness of the costs of restoration or reconstruction of a heritage item (Norm Fletcher & Associates Pty Ltd v Strathfield Municipal Council [2013] NSWLEC 1118 at [63]).

42. The Helou planning principle is not relevant to this appeal, because the case was not presented as the demolition of a heritage item justified by the prohibitive cost of reconstruction. Instead, the case has been presented as the conservation of a heritage item. The applicant submitted that the proposal “successfully conserves the heritage significance [of the heritage item]”. Mr McKenzie described the proposal as “the proposed conservation approach achieves both the heritage conservation objectives [in the LEP and objects of the EPA Act]…”, and “the proposal retains the original form and scale and character of the original house through combination [sic] of conservation processes…” and “when observed from Clifton Gardens Reserve the original architectural character and features of Nicholls design of the east, north and west facades will be evident in concert with the complementarily [sic] designed underlay of alterations and additions.”

43. The applicant’s argument for the proposal is that the conservation of the heritage item justifies the non-compliances with the height of buildings development standard, the FSR development standard and the control for the southern side setback. The Helou planning principle is a different argument justifying the demolition of a heritage item based on the prohibitive cost of conserving the item. The ‘Economic Evaluation’ report is of no assistance to the applicant’s case because the applicant maintained that the proposal is for the conservation of the heritage item.

44. The proposal can be distinguished from the development consent granted by the Council for the demolition of the heritage item at 17 Morella Road, because that development application included a Statement of Heritage Impact (Ex C) that justified the demolition of the existing dwelling on the basis that it was found to be a lesser example of Ancher Mortlock and Murray’s work and it had been considerably modified, and so it did not reach the threshold for local heritage significance despite its listing as a local heritage item. That is not the case in this matter.

The temporary metal roof over the dwelling is not part of the building

45. The applicant submitted that the metal roof over the parapet and flat roof of the existing dwelling forms part of the building pursuant to the definition of ‘building’ under the EPA Act, because the definition of building at s 1.4 includes a ‘temporary structure’. For this reason, according to the applicant, the metal roof is to be included as part of the building when determining the height of the existing building, the number of storeys and assessing the impact the existing building has on views of Clifton Gardens Reserve from 10 Morella Road.

46. The Council submitted that the metal roof does not form part of the building for the purpose of determining the height of the building.

47. The planning experts agreed that the metal roof was constructed in 2010 at the request of the Council to protect the building from further deterioration. The Council submitted that the metal roof was not the subject of a development consent.

48. The definition of ‘building’ under s 1.4 of the EPA Act is as follows:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

49. The definition of ‘temporary structure’ under s 1.4 of EPA Act is as follows:

temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure.

50. I do not accept the applicant’s submission that the metal roof is a temporary structure that forms part of the building. A temporary structure is a ‘building’ within the meaning of s 1.4 for the purpose of being a category of development under s 1.5. A category of development under s 1.5 is either exempt development or is development requiring development consent under Pt 4 (or is an activity requiring environmental assessment under Div 5.1 or is State significant infrastructure). The metal roof was constructed as a temporary emergency measure to arrest the deterioration of the load bearing structure caused by the ingress of water. If the metal roof had been a category of development at the time it was constructed, it would have required consent under Pt 4 of the EPA Act, because it was not exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Pt 2). The metal roof was not the subject of a development consent because it is not a building within the meaning of s 1.5(1)(c) of the EPA Act, and so the metal roof is not a temporary structure within the meaning of ‘building’ under s 1.4 of the EPA Act.

51. The metal roof should not contribute to the calculation of the height of the existing building above existing ground level, nor should it be considered in assessing the impact the existing building has on views of Clifton Gardens Reserve from 10 Morella Road, because it does not form part of the building. The roof terrace is not a storey within the dictionary definition of storey under the LEP 2012.

The existing building is part two and part three storeys

52. According to Mr Wiltshier (Ex B, Volume 2, f 730):

“The building has three levels, the lowest is a sub-floor space, which was not apparently used as a habitable space and has an uneven dirt floor.”

53. The existing dwelling consists of the following (in a dilapidated state) (DA-110 to DA-114, Ex B, Folder 2, tab M):

• Lower ground level: shower and laundry on the northern side of the dwelling;

• Ground floor: entry, kitchen, dining, entry hall, library and lounge and large terrace;

• First floor: three bedrooms, bathroom and upper hall;

• Roof deck, with stair access (now covered by the metal roof).

54. The existing building is part two and part three storeys on the northern side. As the metal roof is not part of the building, the uppermost level is an open terrace with stair access and does not constitute a storey within the dictionary meaning of ‘storey’ in LEP 2012.

55. The applicant submitted that the gross floor area of the existing building is approximately 230sqm.

Wall height

56. The planning experts disagreed on their interpretation of the definition of wall height at cl 4.3A of LEP 2012. The additional provisions for the height of buildings development standards includes a wall height of 7.2m (cl 4.3A(4) of LEP 2012).

57. According to Mr McFadden, the wall height is 11.49m, measured from the uppermost point of the north wall adjacent to Sarah’s Walk (the northern façade) at RL 34.77 to the ground level immediately below at RL 23.28.

58. According to Mr Wells, the wall height of the proposal is 12.4m.

59. Wall height is defined by cl 4.3A as the “vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.” This does not mean that the external wall necessarily must be part of the external façade that commences at the ground. The wall height of the parapet wall clad in terracotta battens that encloses the ensuite bathroom on the second floor (Ex B, Folder 2, DA-213), which is setback behind the face of the masonry parapet of the northern façade of the levels below, is measured from the top of the terracotta battens (RL 36.75, Ex B, Folder 2, DA-400, Section 03) to the existing ground level directly below the wall (existing laundry RL 24.46), being the ‘vertical distance’ between the existing ground and the top of the parapet formed by the terracotta battens, 12.29m.

60. I do not accept Mr McFadden’s interpretation that only the external façades that commence at the ground are measured for the purpose of the wall height calculation, because his interpretation is inconsistent with the definition under cl 4.3A. The definition is not confined to the external perimeter of the building at a lower level, but includes all external walls that end at an eave, or form a parapet or finish adjacent to a flat roof, including those that commence at a higher level as a result of a setback from the face of the façade below.

Contravention of height of buildings development standard

61. According to Mr McFadden, the proposal exceeds the height of buildings development standard of 8.5m by a maximum of 3.75m. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard (Ex B, Folder 1, tab K). The exceedance of the height of buildings development standard is a result of the northern and eastern parts of the uppermost floor addition.

62. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

63. On appeal, the Court has the power under cl 4.6(2) 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(6) LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2012 (Initial Action at [29]).

The applicant’s written request to contravene the height of buildings development standard

64. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action at [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

65. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action at [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

66. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (Wehbe) and repeated in Initial Action at [17]-[21]:

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

• the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

• the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

• the development standard has been abandoned by the council;

• the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

67. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

68. The applicant’s written request justifies the contravention of the height of buildings development standard on the bases that compliance is unreasonable or unnecessary because:

• The proposal does not involve the provision of any additional floors;

• The building form of the proposal is similar to the existing building envelope;

• The exceedance is imperceptible from the public domain;

• The additional height of the dwelling is unlikely to diminish the heritage significance of the heritage item and the existing dwelling already contravenes the height of buildings development standard;

• The exceedance of the height of buildings development standard does not result in an undesirable precedent; and

• The exceedance of the height of buildings development standard does not result in any unreasonable material planning impacts.

Contravention of the floor space ratio development standard

69. The planning experts disagreed on the calculation of the floor space ratio (FSR) for the proposal. Their disagreement amounts to different interpretations of the definition for gross floor area and whether the stairs connecting the levels are included or excluded from the calculation. Mr McFadden calculated the FSR as 0.5:1 and Mr Wells as 0.56:1. For the purpose of addressing the jurisdictional pre-requisite pursuant to cl 4.6 of LEP 2012, the Council submitted that Mr McFadden’s calculation of 0.5:1 can be adopted. I accept the Council’s submission. The FSR development standard for the site is 0.478:1.

The applicant’s written request to contravene the height of buildings development standard

70. The applicant’s written request justifies the contravention of the FSR development standard on the bases that compliance is unreasonable or unnecessary because:

• The proposal does not involve the provision of additional floors, the existing floors have been extended, enclosed or excavated, including the roof top terrace which is enclosed to create the master bedroom with ensuite;

• The proposal fully utilises the existing basement (lower ground floor) which will be excavated, and a new level of accommodation provided;

• The proposal does not result in any unreasonable impacts in terms of bulk and scale, overshadowing, loss of views or increased overlooking, visual and streetscape;

• The proposal is for the creation of a contemporary dwelling that has had regard for its historic fabric;

• The extent of the variation does not detract from the heritage significance of the heritage item;

• The resultant built form will be commensurate with the existing building envelope; and

• The extent of the variation is modest.

The environmental planning ground relied on by the applicant is not achieved by the proposal

71. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

72. The environmental planning ground relied on by the applicant is that the proposal maintains and enhances an existing heritage item within the Mosman locality and conserves part of the original fabric. I accept that, had I been satisfied that the proposal retained the heritage significance of the heritage item, that this could properly be described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23], because the reconstruction and adaptation of Morella would necessarily result in a non-compliant building envelope, given the constraints of the existing envelope and its location on the site.

Overshadowing

73. The additional overshadowing of the forecourt of 3 Morella Road by the proposal is unjustified. The amount of retained fabric of the southern façade is meaningless in terms of retaining the heritage significance of the heritage item, but it does retain the insubstantial side setback to the shared boundary with 3 Morella Road and results in the proposed building envelope being very close to the shared boundary and overshadowing the forecourt of 3 Morella Road. The significant overshadowing of the forecourt of 3 Morella Road on the winter solstice may be justified by the genuine reconstruction and adaptation of Morella, as a result of the existing insubstantial side setback, but it is not justified for a new 4 storey dwelling that should comply with the planning controls for side setbacks in order to minimise amenity impacts on adjoining development.

Conclusion

74. The proposal does not achieve the objective of the heritage clause, cl 5.10(1)(b) of LEP 2012, to conserve the heritage significance of heritage items, including associated fabric, settings and views.

75. An appropriate degree of flexibility in applying the development standards for height of buildings and FSR should be applied to a proposal for the genuine reconstruction and adaptation of a heritage item; and that the retention of the heritage significance of the heritage item is a sufficient environmental planning ground to justify contravening a development standard, within the meaning of cl 4.6(3)(b) of LEP 2012. The proposal, however, is for the substantial demolition of the existing dwelling and the construction of a new 4 storey dwelling and does not retain the identified local heritage significance of the Eric Nicholls’ designed Morella.

76. I accept the applicant’s submission that the proposal is a skilful design. The applicant’s argument that the existing dwelling is sufficiently retained and interpreted to justify the exceedance of development standards and the narrow southern side setback is not made out by the evidence.

Orders

77. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 8/2019/77/1 for the substantial demolition of the existing dwelling, construction of a new 4 storey dwelling, swimming pool and double garage, at 5 Morella Road, Mosman, is refused.

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

___________________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 10 December 2020