Baker Kavanagh Architects Pty Ltd v Waverley Council

LEGISLATION CITED: Waverley Local Environmental Plan 1996

CASES CITED: Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662

APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Mr D Wilson, barrister SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10967 of 2004 Baker Kavanagh Architects Pty Ltd v Waverley Council

1 COMMISSIONER: This is an appeal against the deemed refusal by Waverley Municipal Council (the council) of a development application (DA50/2004) to convert a former church building into two dwellings and to construct four townhouses with basement parking for 12 cars at 72 Mill Hill Road, Bondi Junction (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is on a prominent corner location and is rectangular in shape with an area of 737.8sqm. It has frontages of approximately 12m to Denison Street and Mill Hill Road and approximately 60.5m to Ebley Street. 4 The former church occupies the eastern half of the site. The rest of the site is vacant with a large tree at its western end. The building is no longer used as a church and has been operating as a childcare centre in recent years. 5 Surrounding development to the north, west and south is predominately one and two-storey terraces. The Bondi Junction commercial centre is located to the east on the opposite side of Denison Street. The proposal and its history 6 The application was lodged on 5 February 2004 and was notified to adjoining and nearby residents. Council received a number of objections and some letters of support for the proposal. The Joint Randwick/ Waverley Design Review Panel considered the application and did not support the proposal primarily because of the internal amenity issues. The application was amended a number of times and at the time of the hearing had not been determined by council. 7 The proposal is to demolish later additions to the former church and convert it to 2x3 bedroom dwellings and a caretaker's room and to construct 4x3 bedroom townhouses and basement parking for 12 cars (10 stacked spaces) accessed off Mill Hill Road. Planning Framework 8 The site is zoned 5(a) Special Uses "Place of Public Worship" under Waverley Local Environmental Plan 1996 (LEP 1996). Residential development is prohibited within the zone. 9 The church building and its site are listed as a heritage item and are within the Mill Hill Conservation Area under LEP 1996. 10 The proposal relies for its permissibility on the conservation incentives in cl 50 of LEP 1996 which states:

50 (1) the Council may grant consent to the use, for any purpose, of a building that is a heritage item, or is within a heritage conservation area, or of the land on which the building is erected, even though the use would otherwise be prohibited by this Plan, if it is satisfied that:

(a) the proposed use would not adversely affect the heritage significance of the item or heritage conservation area; and (b) the conservation of the building depends on the granting of consent.

(2) when considering an application for consent to erect a building on land on which a heritage item is located or on land within a heritage conservation area, the Council may, for the purpose of determining:

(a) the floor space ratio; and (b) the number of parking spaces to be provided on the site,

exclude the floor space of the building from its calculation of the floor space of the buildings erected on the land, but only if the council is satisfied that the conservation of the building depends on it making the exclusion. 11 Surrounding residential development is in the Mill Hill Conservation Area and is zoned 2(b) Residential Medium Density. Development to the east of the site is zoned 3(a) Business General. 12 Although not applicable to the subject site due to is Special Use zoning, the Waverley Development Control Plan No 1- Multi Unit Housing (DCP) provides controls for the type of housing proposed in the adjoining 2(b) zone. It is relevant as a document, which articulates the character of future development in the surrounding area. The experts agreed that as the surrounding area is a conservation area, it is not likely to undergo change and that the proposal should primarily respond to the existing character of the area. 13 Development Control Plan No 18 - Heritage Conservation is also relevant.

The issues 14 The Statement of Issues before the Court contained 23 issues. Some of these were resolved by the submission of further information and amended drawings, expert evidence or conditions. The key remaining issue can be categorised as:

i) Whether the proposal satisfies the requirements of cl 50 and has an acceptable impact on the heritage significance of the item and the conservation area and the conservation of the item is dependent upon the proposal, and

ii) Whether the proposal provides acceptable amenity to adjoining residents and future occupants, particularly solar access. 15 The appeal was conducted on site on 20 December 2004 where I issued directions in relation to further information, inconsistencies in the plans and draft conditions. A further mention was held on 4 March 2005 following the submission of further information. This included information on the proposed excavation below the church, the insertion of structure into the existing building and the adequacy of the parking due to the structural requirements and width constraints of the proposed basement. The experts agreed that this information was satisfactory. The Evidence 16 The following experts provided evidence: 17 For the council Mr S Layman, architect and town planner Mr B McDonald, heritage architect 18 For the applicant Mr A Darroch, town planner Mr P Walter, architect Mr S Davies, conservation planner Mr R Staas, heritage architect 19 Mr Colenbrander, geotechnical engineer, for the council and Mr Farinola, structural engineer and M Varga, traffic consultant, for the applicant, Mr P Maneas, the joint owner of the site and Mr J Baker, the architect of the proposal, provided Statements of Evidence but were not required for cross examination. 20 A number of residents provided evidence on site. Some supported the proposal and some raised objections. The principal concerns can be summarised as: · the impact of the proposal on the church and the Mill Hill Conservation Area which the residents considered to be unsatisfactory due to its three-storey height, density and contemporary design. · the setback from Mill Hill Road and the lack of setbacks to Ebley Street which they considered to be uncharacteristic of the area. Some residents considered that a more appropriate form of development would be to have two houses facing Mill Hill Road separated from the church with open space. 21 The residents also raised concerns about the stacked parking and the adequacy of access from Mill Hill Road, which they stated was too narrow and that access should be provided off Ebley Street. 22 Mr M Humphries, 68 Mill Hill Road, was concerned about the bulk of the new town townhouses, overlooking of his property and noise impacts. The adjoining owners on Mill Hill Road and Denison Street did not object to the proposal. 23 The residents were generally not opposed to the use of the church and its site for residential purposes, preferring this use to commercial or community purposes. 24 The heritage significance of the former church is described in the Heritage Inventory Sheet as:

Interesting early twentieth century church essentially intact. Local community interest and important streetscape contribution on corner site. Local significance. 25 The heritage experts agreed that the building was in good condition but held differing opinions on the significance of the church building and therefore on the impact of the proposal. Mr Davies and Mr Staas considered "that it is only the significant structural roof members and the external appearance as a major corner element that requires serious consideration". In their opinion the proposed adaptive reuse for residential purposes retained the appearance of the building when viewed from the corner, with only limited alterations to the south and east facades and the roof. The internal alterations, opening in the west facade and removal of part of the north roof were acceptable and did not adversely impact on the primary significance of the building. 26 Mr McDonald considered the interior of the building, including its spatial qualities, to also be of significance. He was critical of the Heritage Impact Statement as it did not assess the significance of the interior. 27 In Mr McDonald's opinion the proposal involved a degree of intervention that would adversely affect the significance of the item. Particularly the removal of original fabric and the insertion of floors and walls that would change the spatial qualities of the former church. He was concerned that the removal of part of the roof to provide light wells and the exposure of the roof trusses and interior walls to weather would result in damage to the building. He accepted that the proposed "vergola" would reduce the impact from water penetration. Mr McDonald considered that uses other than residential would require less intervention and therefore have less impact on the significance of the building. 28 The heritage experts also disagreed on the impact that the proposed new townhouses would have on the significance of the former church building and the conservation area. 29 Mr McDonald was critical of the Heritage Impact Statement as it did not examine the appropriate curtilage for the church or the importance of the open space as its rear. He considered that the proposal left "a gap in the continuity of built form in Mill Hill Road". He stated that:

The addition of four townhouses would use up most of the available land on the site. The presentation to Ebley Street would involve a minimal setback, which is not characteristic of the small front gardens of the terraces and cottages in the conservation area. The extent to which the site would be covered by built form to accommodate four additional dwelling would result in the open space on the western corner being for private use and contained within a relatively high fence is also uncharacteristic of the conservation area. 30 In the joint statement, Mr McDonald agreed that the scale and setback of the Ebley Street frontage was acceptable with greater articulation. He stated that the third storey did not achieve an appropriate scale relationship with the one and two-storey terraces in the area. This view was shared by Mr Layman but not by Mr Staas, Mr Davies or Mr Walter. These experts stated that the setback to Mill Hill Road was an appropriate design response as it retained an existing tree and enabled access to basement parking to be provided as the site is too narrow to provide access to a basement off Ebley Street. Mr Staas and Mr Davies stated that the existing spatial arrangement on the corner (of open space adjoining buildings along Mill Hill Road) is one that has existed for a long time and has an acceptable impact on the conservation area. 31 Mr McDonald concluded that the proposal did not meet the requirements of cl 50(1)(a) as it would have an adverse impact on the heritage significance of the church and that the conservation area. 32 Further, Mr McDonald said that it had not been demonstrated that the conservation of the item depended upon the granting of consent for the proposal as required by cl 50(1)(b). To accommodate the proposed residential use required significant intervention. He stated:

In this case the high costs of adaptation of the building, as proposed, are due more to degree of intervention that would result than conserving the original fabric and finishes that survive, which are in reasonable condition. The radical changes proposed to the building…… inflate the cost of the project and have nothing to do with the conservation of the heritage fabric. 33 Mr Staas and Mr Davies did not support this opinion and considered that the conservation of the building was dependent upon the economic advantage provided by the incentives clause. They emphasised that the long term conservation of the building was dependent upon a viable use. They considered that the proposed residential use provides the necessary long term viable use that does not impact on the significant values of the building. 34 The planners held different opinions about the density of the development and its compatibility with the conservation area. There are no floor space ratio (FSR) controls in either the LEP or DCP that apply to the site. Therefore the exclusion of FSR under cl 50(2)(a) is not applicable, although the intention of this incentive is relevant. The FSR control for the surrounding 2(b) zone under the DCP is 0.6:1. The proposal has an overall FSR of 1.52:1, but the experts agreed that it would be reasonable to exclude the church and the site area it occupies (339.1sqm). If this is done the FSR of the townhouses in relation to their site (398.7sqm) is 1.1:1. 35 The experts agreed that the existing character of the area is unlikely to change as it is a conservation area. It is therefore appropriate to compare the proposal with the characteristic density of the surrounding area. Mr Darroch undertook an analysis of the FSR of surrounding development. While it was agreed that this was an approximation, it is nonetheless a useful guide. He concluded that 44% of the area had a FSR in excess of 1:1. This development is predominantly terrace housing and the existing FSR is consistent with the FSR in the Waverley Development Control Plan No 2 for single houses. 36 Mr Darroch also compared the development with the other key development characteristics of the existing area and the requirements of the DCP being: subdivision pattern, height and setback. He concluded that the proposal is "entirely consistent with the character of the adjoining development in the Residential 2(b) zone. Mr Walter supported this opinion whereas Mr Layman did not. 37 The key differences of opinion between the planners on these issues were:

i) subdivision: Mr Layman considered the townhouses should continue the subdivision pattern along Mill Hill Road which addresses the street in an east west direction as this would better relate to the conservation area by providing a continuous street frontage and improve the amenity of adjoining development to the north. A number of the residents also expressed this opinion. Mr Darroch considered that as both Mill Hill Road and Ebley Street had terraces, the town houses could face either street frontage but the north-south orientation is preferable as it enables living areas and outdoor areas to face north. It also facilitates retention of the tree and enables access to basement parking.

ii) height: Mr Darroch considered that the area is characterised by predominantly two storey developments. The proposed third storey is below the 9.5m height limit in the DCP but exceeds the wall height control of 7.5m. Mr Darroch considered the third storey to be acceptable as it is set back from both street frontages, has a flat roof and is no higher than the pitched roof of surrounding terraces. While Mr Layman agreed that two storey terraces were dominant in the area, the character of this part of Ebley Street is single storey and it is within this context that the proposal should be considered. He concluded that a three storey form above an elevated basement with minimal setback to Ebley Street would be unacceptable.

iii) setback: As stated above the experts disagreed on the setback to Mill Hill Road. In relation to Ebley Street the proposal has a setback of 300mm which means it is essentially built to the street alignment. The DCP control requires front setbacks of 6m unless the established street setback is less than 6m. Mr Darroch considered that as the church had nil setback along Ebley Street that this was the predominant setback that the townhouses should reflect. Mr Layman disagreed noting that the terraces in the area were set back from the street except for corner buildings which were usually taller and built to the street alignment to emphasise the corner. Findings 38 The 5(a) Special Uses "Place of Public Worship" zoning of the site clearly reflects it previous use as a church and is out of date. The proposed use is prohibited within this zone and gains its permissibility only through the incentives clause of LEP 1996. The two relevant test in cl 50 are:

(a) the proposed use would not adversely affect the heritage significance of the item or heritage conservation area; and (b) the conservation of the building depends on the granting of consent. 39 In Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662 Cowdroy J dealt with a preliminary point of law on whether the true construction of cl 50 refers only to use and not development. His Honour, at para 18 stated that the word "use" contained in cl 50(1) of the LEP is to be interpreted liberally to include "development". Consistent with this decision, the tests in cl 50(1)(a) and (b) need to be answered by considering the development as a whole not just the proposed use.

Does the proposed use adversely affect the heritage item and the conservation area - cl 50(1)(a) 40 The primary significance of the item is its external form when viewed from the corner. However, the internal spaces are also of significance. I recognise that care has been taken to minimise changes to the south and east elevations by maintaining the window sizes, no new openings and retaining the roof. 41 The main constraint on the adaptive reuse of the building for residential purpose is to provide sufficient light and air through narrow windows and to divide essentially one large space into smaller spaces. To achieve this a large part of the northern roof is to be removed which converts what was essentially internal space into external space and enables light wells and "open space" for the dwellings to be provided. A large number of rooms in the building are dependent upon this opening in the roof as their only source of light. The evidence did not explain how the "vergola" will allow light and ventilation into these spaces when it is closed. However, I have assumed that this issue can be overcome. 42 As the rest of the site is being redeveloped there is no open space associated with the building or opportunity to further open up the lower part of the building to the west as the townhouses and entry are built up to this elevation which has had unsympathetic additions. 43 The application does not provide detailed information of the conservation works, the retention of original fabric or the insertion of new structure such as setting back of new floors so that they do not cross the windows or whether the original windows can be openable to provide ventilation. This detailed information can be required as conditions of approval and I have assumed that it would be acceptable 44 A development which provided less accommodation in the building and open space to the west would have less impact on the significance of the item. However, recognising the constraints of the building, its site and the proposed use, I find that even though the proposal involves extensive intervention that will impact on the significance of the building, this impact is not so adverse to warrant refusal if it were the only issue. 45 In relation to the impact of the proposal on the heritage significance of the conservation area, I accept that the setback of the development to Mill Hill Road is acceptable as the "gap" in the streetscape already exists and the retention of the tree is a positive feature. However, the tree is not of such significance that an alternate approach could not be taken that follows the pattern in Mill Hill Road. The use of the setback area for private open space of dwelling 1 will create conflict with the streetscape benefits of the open space and the need to screen it for privacy which the proposed fence and vine planting is unlikely to provide. The car access to the basement is also uncharacteristic of the area but I do not consider these to be sufficient reason to refuse the application. 46 The lack of setback to Ebley Street is uncharacteristic of the area. While some buildings are built to the street alignment these are usually corner buildings that do not extend along the whole street frontage. The usual pattern is for buildings on each corner to be built to the alignment that are higher, often with parapets. Between these are buildings that are set back from the street, lower and with pitched roofs. 47 The lack of setback of the church is not a justification for the townhouses not to be set back along Ebley Street. The single storey terraces on the opposite side of the street are set back a minimum of 1m from the boundary with part of the facades set back further behind verandahs. This provides opportunity for landscaping and articulation of the façade that contributes to the streetscape. I do not consider that the vine planting on tension wire attached to the blank wall of the basement car park and ground floor will achieve a similar or acceptable effect. While the recessed entries will add a degree of articulation is not sufficient to ameliorate the impact of the length and height of this street wall which is uncharacteristic of the conservation area and impacts on the amenity for users of the street. 48 The height of the buildings and the third storey is acceptable when viewed from the street as it is set back. It will largely be screened behind the two storey street wall height. However, the third storey is not set back on its northern elevation and scales at over 9m. This elevation terminates the view of the back gardens of the houses along Mill Hill Road and Denison Street and will be clearly visible from these gardens as a three storey wall set back approximately 3m from the boundary. To minimise privacy impacts the balconies on this façade are proposed to be screened. Consequently the wall will read as one plane that is broken up only by the use of different materials. This is uncharacteristic of the conservation area and also has an unacceptable impact. 49 The FSR of the townhouses exceeds that permissible under the DCP in the 2(b) zone. It is consistent with the FSR permissible for single dwellings and with a large proportion of existing terrace houses. However, these terrace houses are intermingled with other terraces that have a lower FSR. The area is not characterised by buildings of the same size and density but generally with larger building on the corner intermingled with smaller buildings. The development is not consistent with the pattern of existing terrace houses as it has open space to Mill Hill Road, no setback and a two to three storey height along the length of Ebley Street and limited depth of open space to the rear. A development which better complied with the FSR envisaged for townhouse development may enable greater setback from the street, reduction in height, open space that achieves better solar access and separation of the townhouses from the rear courtyards of adjoining terraces and from the church. 50 For the above reasons, while the proposal does not have an adverse impact on the heritage building its impact on the conservation area does not satisfy cl 50(1)(a).

Does conservation of the building depend on the granting of consent - cl 50(1)(b). 51 Mr Wilson, for the council, submitted that it could not be demonstrated that the conservation of the building was dependent upon the proposal as the range of other uses that may have less impact have not been examined. I do not accept this submission as the question the Court must answer is not whether other uses would have less impact but whether the proposed use ensures the conservation of the item and has an acceptable impact on significance. I consider it is sufficient evidence that the building has not been used as a church for some time to indicate that an alternate use is required. There may be a range of appropriate uses however, the site has been purchased for residential purposes and this is what the application is for. 52 I agree that the long term conservation of the item is dependent upon a viable use and that residential would be a viable use for the building. While not a test under cl 50, residential is clearly an appropriate use when considering the likely impact on the amenity of the area, which is predominantly residential to the west of Denison Street. The residents supported residential use of the building. 53 Mr Maneas outlined his family's requirements for the development, which support its use for residential purposes but not for the extent of development. 54 The cost of conservation works in the Statement of Environmental effects submitted with the application is estimated at $621,700. Mr McDonald raised concerns about items included in this estimate, but even if I accept this figure, no justification has been presented that the extent of development is necessary to cover the cost of these works or for the proposal to be viable. The contrary position has been put by Mr MacDonald that the proposal involves extensive intervention, such as excavation under the church to provide basement parking, supporting an internal swimming pool and inserting a new structure into the building which adds considerably to the cost of the project and to the amenity of future users but not to the significance of the item. 55 I accept Mr Staas opinion that the conservation of a heritage item may rely upon the economic advantage provided by the incentives clause. However, the evidence does not demonstrate that the conservation of the building for residential purposes relies upon the level of development proposed for the church and its site. 56 The incentives provisions in cl 50(1)(b) provide for a heritage item to be used for a use that may not ordinarily be permissible. The basis for this concession is that the use will ensure the conservation of the heritage item. 57 The provisions cannot be seen as giving unfettered development rights to a heritage item. The provisions are limited by the need to show how the conservation depends on the approval of the application. This task clearly rests with the applicant and in this case the evidence does not show that the conservation of a heritage item depends on a development of this size. Particularly when the development impacts on the significance of the item and the conservation area to the extent proposed. 58 For these reasons, the application fails to meet the requirements of cl50(1)(a) and (b) and the appeal must be dismissed.

Impact on amenity of adjoining residents and future occupants 59 The logic of orientating the townhouses north-south to maximise solar access has validity but is somewhat reduced by the need to provide privacy screens to the upper levels and the poor solar access that some of the units will receive. The evidence of Mr Layman and Mr Darroch was that the living rooms of four out of the six dwellings would receive more than 2 hours sun in midwinter but only the open space of dwelling 1 would receive "good" solar access. The open space of dwelling 2 would receive some and the other dwelling would not comply, which is not acceptable. 60 Privacy is achieved by screening the northern elevation of the townhouses, which as discussed above, is not an acceptable solution, particularly when considering the impacts on solar access, the amenity of the rooms and overall bulk of the building. 61 The Joint Randwick/Waverley Design Review Panel raised concerns about the internal amenity of the dwellings within the Church. The proposal was amended to increase the size of the light wells which would improve the amenity of these spaces to an acceptable level, although as stated above it is unclear how light and air would be achieved if the "vergola" is closed.

Orders 62 For the above reasons the Orders of the Court are:

2. The development application (DA50/2004) to convert a former church building into two dwellings and to construct four townhouses with basement parking for 12 cars at 72 Mill Hill Road, Bondi Junction, is determined by refusal.

3. The exhibits, except exhibits 1 and 2, may be returned.

      Annelise Tuor
      Commissioner of the Court

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