Armstrong L v Ashfield Municipal Council

Land and Environment Court (NSW)|2004-04-19|Before: Mr P

The application was advertised and 23 submissions were received from residents of the surrounding area. Matters of concern raised in those submissions and which were explained and elaborated by a number of residents at the site inspection include: · Adverse impacts on the streetscape, surrounding heritage items and the conservation area. · Excessive excavation of the site and likely consequential impacts on adjoining properties. · Adverse impacts associated with additional traffic in the street including car parking and headlight intrusion. · Adverse impacts on the aesthetic and historic significance of the existing building. · Adverse amenity impacts on adjoining properties including overshadowing overlooking and excessive bulk and scale. · The absence of a satisfactory landscaped setting for the proposal. 8 . Following its consideration of a report which recommended refusal, the council decided to refuse the application for 16 reasons which principally relate to: heritage, conservation and streetscape; architectural design and internal residential amenity; landscaping and private open space; amenity impacts on adjoining properties; stormwater disposal and excavation; car parking and internal manoeuvring areas; and ventilation of the basement car park. The evidence

On behalf of the respondent Council, expert evidence was provided by: · Mr G. Baker - urban designer · Mr R. Moore - heritage architect · Miss N. McDonnell - town planner · Mr K. Fleeton - engineer

10 . On behalf of the applicant, expert evidence was provided by: · Mr R Ottaviano - engineer · Mr G. Patch - heritage architect · Mr R. Varga - traffic consultant · Mr C. Filmer - architect · Mr R. Walman - landscape architect · Mr A Ludvik - town planner The issues

11 . A statement of issues containing 20 separate issues was filed and served. As a result of consultations between the parties, changes to the design and agreed conditions of consent these issues were essentially reduced to the following:

Whether the proposal will have a significant adverse impact on the adjacent heritage items, the streetscape and the North Summer Hill Conservation Area. 2. Whether the proposal will adversely affect the heritage qualities of the existing building on the site. 3. Whether the internal amenity of the proposal and its private open space will be satisfactory and whether the proposal will have adverse amenity impacts on its neighbours.

12 . According to Miss McDonnell the distinctive features of the Kensington Rd streetscape in the general proximity of the site comprises mature Brush Box trees lining each side of the road, landscaped front gardens, driveway separation between buildings and landscaped side setbacks. Large Victorian era dwellings predominate on the south side of the street.

13 . Given that for the most part the existing building as it presents to the street will, apart from being renovated, remained unchanged, Miss McDonnell 's concerns in relation to streetscape were directed towards the proposed new 3 m wide brick paved access driveway into the basement. This driveway is positioned hard against the eastern boundary of the site and leads to the entrance to the basement where a pair of metal gates is to be provided. Above the driveway in front of the gates is a planter box and pergola. These features and indeed the underground car park itself are uncharacteristic of the conservation area. The car park entry will be a dominant element in the front elevation of the building and in its presentation to Kensington Rd. The resulting adverse impacts will be exacerbated by the absence of any opportunity for boundary landscaping along the eastern side of the driveway. She was also concerned at the extent to which the proposal extends into the backyard area, increasing the bulk and scale of the building to an inappropriate degree.

14 . Mr Baker had similar concerns, arguing that the proposal failed to relate positively to its context for a number of reasons. First the proposed basement access would be inconsistent with the pattern of development in the locality which comprises a relatively small building footprint with a free and unobstructed flow of landscaped open space around the building. Second the architectural and other features, including retaining walls associated with the driveway would be alien in the streetscape and at odds with the heritage characteristics of the neighbouring houses. Third the development as a whole would have a footprint and bulk which significantly exceeds that of its neighbours. Of particular concern is the extent, some 9.5 m, to which the building extends into its rear yard by comparison with its neighbours and indeed the typical pattern of development in the street. Fourth, the poor quality and incompatible character of the architecture of the extension especially in relation to the original building. Aspects of particular concern here include the number of openings in the walls and their proportions and the extensive use of privacy screens which are entirely unknown and incompatible with the Italianate architecture of the original building.

15 . Mr Moore explained that the streetscape would be unable to sustain the introduction of the proposed extension which would be obtrusive, clearly visible and uncharacteristic of the street. It would be interpretable as being wrong because, unlike the proposal, Italianate houses tend to have plain sides to the front and expressed side wall lines. An extension of the kind here proposed will look odd, conflicting with established character and form. Also the multiplicity of opening types and groupings points to a visual complexity which will underscore the extension's difference to its neighbours. Being unrelated to surrounding houses in terms of scale, bulk and character the size of the extension would be inappropriate and would remove the garden setting especially at the side and the rear. The treatment of the proposed car park entry could not disguise its adverse impact and would look unusual and intrusive.

16 . In terms of site planning Mr Moore explained that it is inappropriate to locate new dwellings as is proposed in what should be the back garden, this being inconsistent with the existing development pattern. More generally, the extension would be too big, too long and too expansive. Applicant's evidence

Mr Ludvik believed that the extension to the existing house would have little impact on the streetscape because it would be little seen from Kensington Rd., taking into account setbacks, existing and proposed landscaping and the relatively narrow view corridors from the street towards the new work. As for the proposed driveway there will be little difference between the view of what is proposed by comparison with the existing at grade driveway and garage building at the rear of the site. The rejuvenation of the front facade of the original dwelling house including fencing and landscaping will be a positive improvement to the streetscape

Mr Patch have a similar opinion, explaining that the proposed works to the facade and the proposed landscaping would result in a streetscape presentation that is more consistent with that generally found in the area which otherwise consists of a streetscape of buildings with diverse styles. He did not agree that the footprint of the additions would be excessive, taking into account the size of the garage at the rear of the site which is to be demolished. The resulting areas available for landscaping would facilitate a considerable improvement.

By comparison with the existing house he recognised that the proposal adopts a greater window to wall ratio and different fenestration proportions but pointed out that this was not unusual for a rear extensions of this kind where greater access to light is sought. Indeed the adjoining heritage items have rear extensions that contain similarly proportioned windows to those here proposed. Finishes and materials would be consistent with Italianate villas.

The believed that the massing of the proposal is appropriate in terms of setback and articulation. Moreover it will be little seen from the public domain, taking into account the narrow views available from the street and the landscaping.

As for the driveway and the entrance to the basement garage he explained that this would be satisfactory because even though it will be visible this will be only for a short and relatively insignificant proportion of the traverse along Kensington Rd. Also it will be screened from the west by side planting and will read in conjunction with the wall of the when viewed from the east. When viewed front on the opening will be screened from view and is sufficiently setback so as not to be particularly present in the streetscape. Conclusions

Leaving aside the identification of adjoining houses as heritage items under the LEP and the identification of the locality within the North Summer Hill Conservation Area, there was no dispute as to the heritage and conservation significance of these houses and the locality and the need for these matters to be taken into account in the determination of this application.

I have no difficulty accepting the evidence of Mr Patch that the architectural form and for the most part the detail of the proposed extension is acceptable, particularly in relation to the existing building on the site and the close by buildings of heritage significance. I do however accept the evidence of Mr Moore that the privacy screens on the side walls would unnecessarily introduce visual complexity to the building. In relation to streetscape I also accept Mr Patch's essentially undisputed evidence that, taking into account the rejuvenation of the facade, the presentation of the existing building in Kensington Rd will be satisfactory.

However, I have been persuaded by the evidence of the respondent, that the bulk and scale of the proposed extension and the extent that it projects into the rear yard of the site are unacceptable. This is because the footprint would occupy an inappropriate proportion of the site and its bulk would be significantly in excess of that of the neighbouring dwellings of heritage significance, producing an inappropriate relationship. The significance of these dwellings must be given greater weight than the neighbouring residential flat building. Also what is proposed is, by comparison with what is typical in the street excessive, and points to a design that is not appropriately responsive to the conservation significance of this locality.

It was correctly suggested that the proposed extension, as a result of the restricted view corridor and proposed landscaping, would be little seen from the street. However I do not accept that the incompatibility, which I have just described can be excused because it is to be hidden by landscaping and may not be apparent from the public domain.

Finally in this context, whilst the removal of the existing garage opens up the rear yard of the site, being only single story its removal cannot be sufficient by itself to justify the proposed extension of a two-storey building into this part of the site. Similarly its removal does not result in an appropriately sized garden setting, taking into account the surroundings.

The proposed access ramp to the basement and its associated structures and landscaping was the subject of much criticism. However in principle I have not been persuaded that this form of access into the site would be inappropriate. Whilst the structures above the ramp will be higher than ground level a sufficient sense of openness around the building will be maintained and the structures will be softened by landscaping. Driveways down the side of buildings are not uncommon in this locality and what is proposed here is a variation of this approach albeit a more modern version associated with a residential flat building. Notwithstanding this there are aspects of this ramp which are unsatisfactory. I agree with the concerns expressed by neighbours as to the height of the structure on the side boundary although this was reduced in a subsequent design. It is nevertheless problematical because it is to be constructed hard against the side boundary with no opportunities provided for landscaping to soften its visual impact especially when viewed from the east.

As a consequence, for reasons of heritage and conservation I have decided that the proposal should not, in its present form, be approved.

Given that I have decided that the appeal should be dismissed it is not strictly necessary to embark upon a detailed analysis of the likely impact of the proposal on its neighbours or the amenity of the proposal itself. I nevertheless make the following observations.

In relation to privacy, the proposal would significantly overlook No 4 Kensington Rd and to a lesser extent No 12 Dover St from a number of windows and balconies and this would be substantially resolved by the provision of landscaping and privacy screens. Whilst the residential flat building at No 8 Kensington Rd will also be overlooked the extent of overlooking between two residential flat buildings is of lesser concern. However given the number of windows and balconies which need to be effectively enclosed by such screens together with the reliance on landscaping this is indicative of a fundamental design flaw and I am not satisfied that it is a satisfactory solution.

There are a number of other aspects of the proposal which have unsatisfactory amenity impacts on No 4 Kensington Rd. The midwinter shadows generated by the rearmost two-storey part of the proposal results in an undesirable overshadowing of the rear yard and living rooms within the house. Similarly this part of the proposal would contribute uncharacteristically to a sense of overbearing and enclosure but this is mitigated somewhat by the setbacks from the side boundary, which are in excess of 6 m and the landscaping. The close proximity of three courtyards and two balconies is also somewhat problematical particularly in terms of aural privacy.

As for the internal amenity of the proposed dwellings, whilst the privacy screens would have a detrimental effect on the penetration of daylight and sunlight into the proposed dwellings this is not critical although their amenity would be reduced by the resulting sense of enclosure and restricted outlook. This is not helped by the fact that the south-east facing courtyards and balconies would be extensively overshadowed in midwinter. Finally, even though some of these dwellings might be somewhat difficult to furnish I have not been persuaded that their size is critical.

Orders 1. The appeal is dismissed. 2. Development Application No 148/00 for alterations and additions to the existing two-storey residential flat building at 6 Kensington Rd., Summer Hill is determined by the refusal of development consent. 3. Exhibit O is retained.

_____________________ T A Bly Commissioner of the Court mp

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Armstrong L v Ashfield Municipal Council [2004] NSWLEC 166 revised - 21/06/2004 APPLICANT L Armstrong PARTIES : RESPONDENT Ashfield Municipal Council

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