Baynie v Ku-ring-gai C

CASES CITED: Joyce v Ku-ring-gai Council [2002] NSWLEC 46 Bignold J

APPLICANT Mr D Baird, solicitor of Maddocks LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was delivered as a verbal judgment and for clarity it has been edited before publication. 1 By way of background, the Court was referred to a previous judgment in this Court of his Honour Bignold J in the matter of Joyce v Ku-ring-gai Council where his Honour considered a proposed development under State Environmental Planning Policy No. 5 for elderly and disabled people on the subject site and that application was refused.

2 Subsequent to the above appeal an application was submitted to Ku-ring-gai Council for the subdivision of two lots from the rear of the subject property, that is on the southern portion of the subject site. This land was previously in the vicinity of the kitchen in the area of the vegetable garden and other service areas and two lots were created in this area both with entrance from Cleveland Street, one being via a right of way.

3 The subject property is known as No. 37 Burns Road, Wahroonga, on the south eastern corner of Cleveland Street and Burns Road. The site is heritage listed and contains the dwelling known as Craignairn.

4 The proposal now before the Court is to subdivide the existing 7016 sq m lot into two allotments and the large allotment containing Craignairn would be on the corner with an allotment to the east of the subject heritage item, having frontage to Burns Road of some 30 m and a depth of some 70 m, yielding 2061 sq m. The allotment containing the heritage item would have a frontage of some 69 m and a maximum depth of 73 m with an area of some 5000 sq m.

5 Given this is a verbal judgment, I will say at this point what my decision is and that is I am not persuaded by the evidence presented on behalf of the applicant that the application is one that should be approved. In other words, the application fails and it fails in terms of its impact on the heritage item known as Craignairn. I have given careful consideration to this matter and I have the benefit of the evidence and an extensive site inspection. I will go through the controls and I go to the evidence but, I consider it fair and reasonable that I say early in my judgment that the application should be dismissed.

6 The Court met on site with the parties and heard from a number of resident objectors on the view. The resident objectors are opposed to the proposed development, that is, the subdivision of an allotment from the heritage item and its curtilage to allow a site with access from Burns Road.

7 The concerns expressed are that the heritage significance of Craignairn, which is significant in the local area, would be compromised by the subdivision and the proposed development would not be consistent that the council's controls in terms of the need to give consideration under the Ku-ring-gai Planning Scheme Ordinance for items of heritage and for development within the vicinity of heritage items. 8 The issues that the council initially raised are: + Whether the proposed subdivision is consistent with the requirements of the Ku-ring-gai Planning Scheme Ordinance and that is, the subdivision on the eastern side would reduce its heritage significance and setting and subdivision of one lot will restrict the future conservation of the house as a large estate house with an assembly of structures and garden elements; + Subdivision of one lot from the east will impact on the immediate neighbouring heritage item and a reduction in the existing setting will have an adverse effect on the heritage significance of Craignairn; + The existing lot is the minimum size necessary to retain the heritage significance of Craignairn; and + Whether the development should be approved, having regard to the objections raised by local residents; and the other issue was with respect to the previous decision of the Court.

9 There were a number of written objections also handed to the Court in bundles. The Court has had the opportunity of reading the objections to the proposed development and reading the heritage reports submitted to the Court.

10 On behalf of the council evidence was given to the Court by: + Ms C Morris, a landscape heritage consultant; + Mr David Logan, heritage architect; and + Mr Robert Moore, a heritage architect. 11 On behalf of the applicant evidence was given to the Court by: + Mr Robert Staas, a heritage architect; + Professor Werrick, a professor of landscape architecture; + Mr Nigel Dixon, an urban designer/architect/town planner; and + Mr Pittendrigh, a consultant landscape architect 12 The Court had the opportunity of hearing concurrent evidence from the experts and the parties were given the opportunity to ask any additional questions.

13 A joint report was also prepared between the experts and at the end of the day the difference in the heritage experts' opinion is that there is no dispute that the proposed dwelling and its curtilage and, in particular, certain views from the public domain, in particular, Burns Road and Cleveland Road are important in terms of the contribution of this heritage item to the area.

14 The difference is that the experts for the applicant are of the opinion that a proposed subdivision could be accommodated subject to strict controls in terms of a building envelope, setbacks and other requirements for landscaping to ensure that there is a continuous seamless frontage to Burns Road which also provides a view through to St Andrews Tower.

15 I am not persuaded that a subdivision even with the covenants and controls provided in terms of a s 88B instrument to provide seamless landscaping or an integrated, coherent landscape frontage to Burns Road for Craignairn could be achieved.

16 It would be an impractical situation to not allow persons that own a property with a frontage to Burns Road of some 30 m not to be able to develop that land. There would be a reasonable expectation that land could be developed and whilst the covenants provide for no fencing that would be an unreasonable disproportionate requirement for a future owner of the new allotment if not connected with Craignairn.

17 I am not saying that there is no potential for development of the property known as Craignairn but in terms of this application before the Court for subdivision it must fail.

18 The significance of Craignairn is one that is most important to the area of Wahroonga because Craignairn represents a very large estate house. It is also one of the many dwellings designed by the architect Joseland who designed and lived in his own home 'Malvern' at No. 41.

19 At No. 39 there is the heritage item known as 'Coolabah'. It was erected in approximately 1900 and it was designed by Joseland for Mr Strang and his family who subsequently then erected the large estate dwelling/mansion known as Craignairn in approximately 1908 to 1909. There was a distinctive design philosophy which can be seen in terms of these dwellings and a philosophy that Joseland in many respects was a pioneer of in terms of the relationship of the built form/dwellings to not only the Australian climate in terms of taking advantage of north-easterly areas for recreating but also in terms of recognising the relationship between a mixture of exotic plantings and maintaining tall trees, in particular those on the boundary of Craignairn, in the vicinity of the dwelling house and its boundary to Cleveland Street. In many respects Joseland, was a leader for his time in terms of retaining significant stands of indigenous vegetation and also introducing formal gardens with exotic plantings.

20 The dwelling house known as Craignairn is a very substantial home in terms of its footprint, in terms of its presence and in terms of its presentation both to Cleveland Street and to Burns Road. It is clearly a dwelling house that is much larger in proportions than that at 'Coolabah' which is also a Federation era dwelling that also retains, but on a smaller scale, the interrelationship of the garden setting and the north-easterly side garden in particular, as do the other properties by Joseland in Burns Road.

21 It was submitted on behalf of the applicant that a lot of some 30 m in width is commensurate with other allotments or subdivisions in Burns Road, however, this is not the critical issue. The issue is one of proportionality, that is the size of the allotment that is necessary for the heritage significance of Craignairn.

22 If one assesses the sight lines drawn by the applicant in terms of appropriate conditions or covenants to place on a future lot this in itself demonstrates the need that Craignairn does in fact require proportionally a very large curtilage on the north-eastern portion of the site to ensure its continued heritage significance. In my assessment the change in ownership would compromise the 'seamlessness' of providing and maintaining the necessary curtilage to Craignairn to its east.

23 There was a great deal of discussion about the value/significance and importance of the different portions of the Craignairn garden and curtilage. Clearly there are distinctive parts of the curtilage in terms of: the rear service and vegetable garden areas (now subdivided with two dwelling houses); the natural vegetation to Cleveland Street; and the formal recreational areas of what would have been the croquet area initially, and transformed to a tennis court in the 1940s or thereabouts. The northern area is a distinctive active and passive recreational area and the importance of presenting a heritage item that has a particularly special relationship with the recreational areas of the curtilage is something that should be maintained. In my assessment, separate ownership of this area of land is not appropriate and it would be unreasonable to expect future owners not to be able to develop in some way, what would be approximately a third of the proposed new lot to be subdivided.

24 For the applicant envelopes were provided in terms of fitting in a built element and it may be possible that a built element could be accommodated but in my assessment not on a separate parcel of land. I do not wish to make comment about the appropriateness or otherwise of a future built element because unfortunately, following the earlier subdivision the resultant built forms have not respected 'Craignairn'. And by saying that it is already compromised, and therefore the current subdivision should be allowed, is also not an appropriate approach for this heritage item. While unfortunately two blocks have been subdivided without appropriate controls on the built form, nonetheless the curtilage of 'Craignairn', in terms of its importance to Burns Road in particular should be maintained. The dwellings of 'Craignairn', 'Coolabah' and 'Malvern' obviously have a relationship to their north-east garden areas that should be conserved.

25 I am not going to comment on whether a built element is appropriate between 'Craignairn' and 'Coolabah' except to say that it is important to maintain a visual relationship. And the visual relationship of the front north- eastern curtilage for 'Craignairn' is important to respect in terms of the view lines from Burns Road, which are not static but perceived in terms of the total site. The sight lines that have been drawn on the plan serve also to demonstrate the extent of the view lines that should be maintained/conserved.

26 Number 39 currently is some 43 m from Craignairn. It is proposed with the subdivision that a built element be approximately 15 m from the closest portion of Craignairn with a 5 m curtilage from that to the common boundary with Craignairn.

27 Returning to question of the curtilage that has been described with a number or various elements, but one must at the end of the day stand back and carry out a holistic assessment and not say, because one portion or element is less or more important than another it can therefore be forfeited. One must look holistically at what the architect envisaged for Craignairn as a package and while it certainly is made up of a number of components it is important that those relativities and various elements be conserved in an appreciation of the history of the dwelling constructed in the centre of two large allotments.

28 The fragmentation of the garden into the character areas is a matter that was referred to by Ms Morris in her evidence and she stated that this diffuses the significance of the place or the item and I agree with her summation. 29 The Court has been assisted by the joint conferencing in this matter and based on the evidence I have concluded that it is inappropriate to subdivide the land. Separate ownership of land provides certain expectations that one can reasonably develop one's land and this would not provide the necessary certainty for conserving the heritage significance of 'Craignairn'.

30 It was also brought to the Court's attention (and this is a valid point, although I do not need to go so far in terms of refusal of the application), that SREP 53 - the Dual Occupancy State Regional Environmental Plan - still applies in the Ku-ring-gai Municipality and this allows for dual occupancy development. As pointed out by Mr Rigg in the proceedings once subdivision has been approved there would be nothing to prevent the development of either Craignairn itself or the newly created lot could be developed for dual occupancy development and in those circumstances a covenant would not be relevant or enforceable despite the good intentions of this proposal to provide certainty in the final development outcome.

31 For completeness I need to identify that the subject site is zoned Residential 2C under the Ku-ring-gai Planning Scheme Ordinance and dwelling houses are a permissible use as is subdivision and, as I stated, the SREP 53 also allows for dual occupancy development.

32 The other relevant provisions under the KPSO are 61D and 61E. 61D is the development of heritage items and:

"A person shall not in respect of a building work, relic, tree or place that is a heritage item demolish or alter the building or work. B, damage or move the relic, et cetera, erect a building on or subdivide land in which the building work or relic is situated or that comprises the place, except with the consent of the council."

"The council shall not grant consent to a development application under sub cl 1 unless it has taken in consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item in any stylistic or horticultural features of its setting."

34 Development in the vicinity of heritage items, 61E:

"The council shall not grant consent similarly to an application that would impact on items in the vicinity of the development."

35 As I stated, Craignairn itself as well as the adjoining properties, including Coolabah at number 37, are local heritage items under the Ku-ring-gai Planning Scheme Ordinance in terms of the schedule to that plan.

36 The evidence given to the Court by Professor Werrick was that one needs to maintain the sweep of lawn across the front of Craignairn as a wide green bounded by trees and shrub plantings interrupted only by occasional specimen trees as per the Strang family photograph.

37 In terms of the significance of 'Craignairn' it was stated that the owners could or could potentially plant tress which may interfere with the heritage listing in terms of the garden significance. At the same time one could make the comment that it would be even more difficult to prevent people that owned the new lot to plant their own trees despite the intentions of an overall landscape plan between the two properties. It is difficult enough for landscape plans to be implemented and executed with one owner let alone with two owners.

38 Professor Werrick also stated that one could not build any type of dividing fence on the shared boundary between the new lot and the remaining Craignairn lot. For the current boundary with Coolabah it is noted there is a lapped and capped paling fence on the boundary which in itself is probably not consistent with the original cross viewing between these properties in terms of their inter-connectedness.

39 Professor Werrick's evidence about the significant period of evolution of the garden is important to note as there has been an evolution of the functions of the garden. As I stated, the tennis court was not part of the original plan when the house was constructed but there is still a clear visual identity of the various spaces that are provided around Craignairn today even though there has been certain changes n the functional use.

40 The view corridors, as I stated, that were drawn by Mr Dixon, with input from Professor Werrick and Mr Staas and Mr Stuart Pittendrigh, demonstrate to my mind the interconnectedness or the integral part of the front north-eastern portion of the site is necessary in terms of the heritage significance of 'Craignairn'.

41 Professor Werrick spoke about the capacity of the lush Wahroonga gardens to visually absorb all manner of residential and institutional development and that it was a fundamental character of the district. As one drives along Burns Road one certainly is struck by the luxuriant vegetation, but one also does note some of the less sympathetic dwellings that have been erected of more recent times that intrude into the landscape. In my assessment this observation does not justify the proposed subdivision.

42 It is clear to the Court that Craignairn is distinct in terms of its size and curtilage but, as I stated earlier, the proportionality of the dwelling house to the grounds is most significant in the court's assessment.

43 In terms of the key urban design recommendations that Mr Dixon developed to ensure future development is appropriate, in my assessment this in itself demonstrates that it is imperative in order to conserve the heritage significance, that the land not be subdivided.

44 In terms of Ms Morris's evidence she stated that while landscape plans are submitted, in her experience it is difficult to enforce their implementation, management and maintenance, and it is far more difficult than ensuring that a building is constructed to an approved plan. Further she stated landscape plans provided over a number years for 'Craignairn' since 1970s have not been fully implemented and there is no reason to believe that the latest landscape plan will be fully implemented and properly managed by one owner let alone two, so once again this would lead to uncertainty and a degree of uncertainty that is not desirable for the future heritage significance of Craignairn. All the experts were in agreement that Craignairn in its landscape setting is most significant. 45 Professor Werrick stated that the current landscape scheme for 'Craignairn' is not cohesive and that he therefore considers the subdivision would allow an opportunity for a cohesive landscape plan. However, approval of the subdivision is not required for this to occur. The applicant also proposed a trust for Craignairn in terms of restoration /maintenance works required but there would be no guarantees or certainty in this process.

46 Mr Logan in his evidence stated that Burns Road is an outstanding streetscape with a significant concentration of large Federation houses with expansive garden settings and Joseland in his designs expressed regard to the Australian climate and to garden settings that provided for an appropriate mix of exotic and indigenous species.

47 I note that there are a number of heritage items in this portion of Burns Road Wahroonga. However, this is not a conservation area and, in my opinion this should be seriously considered given the inter-relationship of the dwellings and their presentation to Burns Road.

48 The Court in its assessment has had regard to concerns expressed, in particular, by the residents and also by some of council's experts in terms of the judgment provided for the SEPP 5 development that there should be no further development of the estate (following the excision of the two rear allotments). However, clearly in the matter before me I must consider the application on its own merits in its context. The previous judgment of the Court does not (or previous decisions of council for that matter do not) prohibit or limit an applicant's or an owner's opportunity for making further applications.

49 While not a matter for me, by way of comment the subdivision of the rear allotments and resultant dwellings are unfortunate in terms of the built form as they do not provide commensurate landscaping and do not provide an appropriate 'fit' in terms of the character of the area. However, the impact of the development, in particular another built form or element in front of on the rear battleaxe property is a relevant matter but in my assessment this would not warrant refusal of the application before me. The rear battleaxe dwelling excessively 'borrows' from the adjoining setting of 'Craignairn' without contributing to the character of the area, and the proposed built element would not be obtrusive when viewed against the new premises at the rear. Each dwelling or development of each allotment should make a contribution to the vegetated setting of the Wahroonga area and not rely on the generous curtilages of adjoining properties if the luxuriant vegetated character of the area is to be maintained.

50 In terms of the impact on No. 39 Burns Road, as could be seen from the site inspection, and evidence given by a consultant planner on behalf of the owners, I agree there would be no direct impact in terms of visual overlooking/ privacy of a new built element in the location proposed. However, the subdivision of the property in my assessment would not conserve the heritage significance of 'Craignairn'.

51 In terms of the heritage provisions the heritage significance of Craignairn, is described as:

"an outstanding example of a grand estate house built in Wahroonga for the wealthy elite following the construction of the North Shore railway line, it is rare for the meticulous reconstruction of the house in 1937 following a fire in 1936. It is an excellent example of the work of the prominent architect Howard Joseland and is all the more important as part of a collection of substantial Joseland designed houses in the immediate area. The significance of the house is enhanced by its large open garden setting and in particular the deep landscape setbacks from its boundaries on all four sides and the neighbouring houses. Sited in the centre of a very large site amidst a spacious landscape setting is evidence of design principles of the English Garden City Movement and the objectives of the early residents of Wahroonga in seeking to establish semi-rural estates. It epitomises Joseland's publicly exposed views on domestic architecture, including design for climate and the use of natural materials devoid of the irrelevant embellishments. The property is a prominent local landmark due to its corner location. It makes a strong contribution to the acknowledged heritage value of Wahroonga and, in particular, is pivotal within the highly significant sub precinct formed by Burns Road, Cleveland Street and Water Street which contains an important grouping of large Federation period houses, many designed by Howard Joseland. It has rarity as a large Wahroonga 'estate house' which has retained its original curtilage and garden setting. The property has heritage significance at a State level for its historic associations, aesthetic values and rarity and a significance at a local level for its historic and representativeness values.

52 I also note in Mr Staas's conservation plan for Craignairn "the house is set centrally on the large site and designed to be seen as a three dimensional item from a number of vantage points from inside and outside the side boundaries. … Craignairn is the most prominent of the surrounding developments and this is accentuated by its location at an intersection, its open site character and the scale and dominant form of the house itself".

53 As noted earlier the proportions and positioning of Craignairn are important in an historic sense as it was built on the centre of two already large allotments and clearly it was always envisaged that it would have a very large curtilage compared to other dwellings in the vicinity that in the main, especially Joseland houses, have the larger part of the curtilage to the eastern boundary, north-eastern boundary.

54 In terms of Ms Morris's evidence to the Court, I agree that a key point in considering the subdivision is that the heritage item is the property as a whole, not the house in isolation. An integral component of the significance of the place is that Joseland's landscape planning is still evident in partnership with Vernon and he sited his houses so that three sides of the house could be fully appreciated from a distance. The verandas or outdoor living areas on his houses were intended to overlook large areas for passive and active recreation and there are few places, she states, where the original intention of this prominent architect's work can still be appreciated. Part of the significance of Craignairn, Ms Morris goes on to say, is its size and provision of the potential for the lifestyle of a grand house.

55 The argument the proposed allotment is in keeping with the established character ignores the fact that the very scale of Craignairn sets it apart from the majority of its neighbours, contributes to its landmark status and is an important aspect of its significance. The landmark status of Craignairn, is an important aspect of its aesthetic and social significance, would be diminished by further subdivision because the impacts that flow from that decision would reduce the appreciation of Craignairn as an estate to that of a large house in Wahroonga and the construction of a driveway adjacent to No. 39 Burns Road, will immediately impact on the generous frontage to Burns Road, reducing the perception of a grand property and signalling that it is two properties rather than one.

"There is a well established historic relationship between Nos. 37 and 39 that has been maintained by a progression of owners, although a new boundary fence was recently erected that is not entirely sympathetic to this historic connection. The subdivision of the site and any new development that subsequently occurs on the site will impact on its relationship between Craignairn and the neighbouring Joseland designed house at No. 39.

Craignairn is part of a group of Joseland designed residences which have large settings and is an identified urban conservation area that has been repeatedly subjected to incremental changes. The subdivision at the rear is a recent example of the changes being made.

The cumulative effect of such decisions, the construction of new buildings that compromise the expansive settings that characterise the area, the introduction of new fencing and the removal of trees alter the established character that is considered significant and ultimately negatively impacts on the significance of the area as a whole.

"There is a common body or common opinion of the well understood history and association with individual prominent people in the history and early development of Wahroonga and the remaining history in terms of the fire, et cetera and the respectful reconstruction that occurred. … there is high aesthetic values of the house set in its spacious grounds which arise from and demonstrate the architectural and social values behind its siting, design and construction. The landmark stature of the house arising from its design, setting and location and the fact that there is, underscored by an exceptional rare group of houses all designed by the one architect, an individual prominent and influential in his profession and local community and its rarity as a large estate house set in spacious and impressive grounds that in retaining much of the original dimensions are increasingly rare within the municipality in Sydney". 58 At the end of the day, in many respects, my decision to refuse the development application is not so much the difference between the experts because the experts all agree that the view corridors to the dwelling from Burns Road in the vicinity of the boundary of Coolabah are significant and need to be retained in terms of the landscape continuity across the property and frontage of Burns Road because of the relationship between those spaces and Craignairn itself and also then the interrelationship with No. 39.

59 I am not satisfied that the covenants and conditions submitted by the applicant are practical to implement and they would not provide for certainty in the process. And subdivision of this estate in itself leads to expectations and it is inappropriate for separate ownership and Torrens title of a parcel of land which has significant visual curtilage to the heritage item itself.

60 Therefore, on the basis of my merits assessment above in terms of the provisions of the Ku-ring-gai Planning Scheme Ordinance, the impact of the proposed subdivision on the heritage item means the application must fail.

61 Therefore the formal orders of the Court are: 1. The appeal in respect of the property known as Craignairn No. 37 Burns Road, Wahroonga, is dismissed; 2. The development application as submitted to Ku-ring-gai Council, and as amended, for subdivision of the above property into two lots is determined by the refusal of consent; and 3. The exhibits, except 5, 6 and C, are returned to the parties.

      J S Murrell
      Commissioner of the Court
      Ljr/rjs

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