Planning Framework
10The amended proposal is made pursuant to the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPPSL). The relevant aims of the SEPPSL, at cl 2 are:
(1) This Policy aims to encourage the provision of housing (including residential care facilities) that will:
(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and
(b) make efficient use of existing infrastructure and services, and
(c) be of good design.
(2) These aims will be achieved by:
(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy
11The following relevant definitions are included in cl 3 of the SEPPSL:
heritage conservation area means:
(a) land identified in another environmental planning instrument as a heritage conservation area and includes buildings, works, trees, archaeological sites, Aboriginal objects or places situated on or within that land
heritage item means a building, work, tree, archaeological site, Aboriginal object or place (which may or may not be situated on or within land that is a heritage conservation area) described as a heritage item in another environmental planning instrument.
12The SEPPSL includes the following in relation to its relationship to other planning instruments at cl 5:
(3) If this Policy is inconsistent with any other environmental planning instrument, made before or after this Policy, this Policy prevails to the extent of the inconsistency.
(4) This Policy does not affect a provision in another environmental planning instrument that relates to the demolition of a heritage item.
13The parties agreed that cl 5(4) of the SEPPSL, quoted above, does not apply, as the site is not identified as a heritage item.
14The SEPPSL includes the following in relation to its relationship to other planning instruments at cl 15:
This Chapter allows the following development despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy:
(a) development on land zoned primarily for urban purposes for the purpose of any form of seniors housing
15The SEPPSL includes, at cl 31, that the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the NSW Department of Planning and Infrastructure in 2004 (exhibit 2) are a mandatory consideration in determining a development application for in-fill self-care housing.
16The SEPPSL includes, at cl 32, that a consent authority must not consent to a development application unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2. The relevant principles set out in Division 2, at cl 33 'Neighbourhood amenity and streetscape', require the development to achieve the following:
(a) recognise the desirable elements of the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and
(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan
17The SEPPSL includes the following in relation to standards that cannot be used to refuse development consent for self-contained dwellings, at cl 50:
A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds:
(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys)
18The site is with the Residential B Zone, pursuant to the North Sydney Local Environment Plan 2001 (LEP 2001). The objectives of the zone include:
(a) maintain lower scale mixed residential neighbourhoods, and
(b) allow for residential development in a variety of housing forms, including detached dwellings, duplexes, attached dwellings and boarding houses, and
(c) assist in the conservation of heritage, and
(d) minimise the impact of non-residential uses and ensure these are in character with the zone.
19The site is identified as a contributory item within the WCA. The site is within the vicinity of a number of heritage items, including 25, 36, 42 and 46 Shirley Road (Heritage Map, Sheet 4 of 4 LEP 2001).
20North Sydney Local Environment Plan 2013 (LEP 2013) is now in force. Clause 1.8A of LEP 2013 is a savings provision requiring development applications, made before the commencement of the plan and not finally determined, as is the case for this proposal, to be determined as if the plan had not commenced. Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (EPA Act) requires that any proposed instrument that is or has been the subject of public consultation be a mandatory, relevant consideration in evaluating the proposal (Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 par 29).
21The site is within the R3 zone, pursuant to LEP 2013. The proposal is permissible with consent in the R3 zone. The objectives of the zone include:
· To provide for the housing needs of the community within a medium density residential environment.
· To provide a variety of housing types within a medium density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
· To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.
· To provide for a suitable visual transition between high density residential areas and lower density residential areas.
· To ensure that a high level of residential amenity is achieved and maintained.
22The site is within the vicinity of a number of heritage items, listed in Schedule 5 of LEP 2013, including 25, 36, 42 and 46 Shirley Road, all of which are also located within the WCA. The WCA is identified as CA25 on the LEP 2013 heritage map and listed in Part 2 of Schedule 5.
23The proposal is subject to the relevant objectives and controls of the North Sydney Development Control Plan 2002 (DCP 2002), to the extent that they do not prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified SEPPSL. DCP 2002 contains the character statement for the WCA at subsection 9.5.1, which states:
In addition to the character statement for the planning area the following character statement applies to and is the desired future outcome for the WCA.
Conservation Area Character
WCA is a residential neighbourhood of detached houses and some apartment buildings on large garden lots. The area is relatively isolated, being partially surrounded by bushland reserve and severed from the adjacent hinterland by the North Shore railway line. Access to the conservation area is via Shirley Road that runs along the ridge. Subordinate circuit streets, Milray and Tryon Avenues run with the contours, around the peninsula.
The conservation area forms part of the Wollstonecraft Peninsula that lies between Gore Cove and Balls Head Bay. The vista along Shirley Road terminates dramatically at Berry Island, an area of regenerated bushland, and there are expansive views of Sydney Harbour and Berry Island from the end of Shirley Road. Milray Avenue is narrower, curved and therefore, has closed vistas. One side of Tryon Avenue is not built on and is open to the bushland reserve and Balls Head Bay, providing filtered views of the bay and beyond.
Streets within the conservation area incorporate level changes across their width, through spilt level carriageways or lowered pedestrian pathways that are both retained by characteristic sandstone wall. Sandstone steps provide pedestrian access between the levels and there is widespread use of the two railed timber fence that defines public walkways throughout the North Sydney area.
Some streets have planting both in the street reservation and on the grass verge. Planting in front gardens contributes to the landscape, particularly where there is no street planting.
Shirley Road is a wide suburban street contain impressive Federation Arts and Crafts style housing, some Inter-War, Old English and Californian Bungalow housing.
At the top end of Shirley Road there are some large Inter-War flats of red textured brick construction. The houses are generally large, set well back from the street, in established gardens with mature plantings. Most are on original lots. There are a number of tennis courts visible from the road.
Milray and Tryon Avenues have a similar character to Shirley Road with houses of various Inter-War styles set on large garden lots. The two corner buildings on Shirley Road are impressive for their setting and sting taking full advantage of the prominent and elevated corner location. Cable Street appears to be one subdivision with consistent housing stock forming an intact late Federation group of more modest houses.
Uncharacteristic elements within the conservation area are principally around the fringe of the conservation area to the west and east and include townhouse developments on subdivided or amalgamated lots. These are of low scale but have broken the consistent development patter of an otherwise intact precinct. The other intrusions are the more recent unit blocks in Shirley Road and a number of alterations and additions that are progressively changing the scale of the buildings.
Heritage Significance
WCA is of significance:
1. as a largely intact early 20th century subdivision retaining much of the urban detail and fabric in its gardens, fencing, street formations, use of sandstone, sandstone kerbing, wide streets and compatible plantings, and response to the topography of the peninsula.
2. as a consistent and largely intact early 20th century residential area with a mix of Federation and Inter-War housing on large lots.
3. for its unity derived from its subdivision history which is still clearly seen in the development of the area.
4. for the integrity and quality of the majority of the buildings.
24Section 8.8 of DCP 2002 includes the following explanations for heritage items and categories of buildings within heritage conservation areas:
Heritage items
A heritage item has cultural heritage significance. This means that the item has aesthetic, historic, scientific, social or other special value for future generations of Australia. These items have been individually identified to conserve those values that they represent. It is important to retain a representative sample of development in North Sydney so linkages with the past remain evident. Council considers the impact of proposed development on the heritage significance of properties identified as heritage items. The controls in Council's planning documents encourage retention of heritage items in their significant form whilst allowing sympathetic development to occur. Heritage items do not just include buildings; they consist of the land which bounds them (curtilage), sites or significant site features such as gardens, wells or fountains and interiors. The main difference in the consideration of an application for a heritage item and a property within a conservation area, is that Council considers heritage items independently. The development controls function to protect the significant elements of each heritage item. Council does not permit the demolition of heritage items (whole or in part), unless they have been irrevocably altered or damaged beyond a point of reasonable repair. Always consider alternatives to demolition.
Conservation areas
A conservation area is more than a collection of buildings. It is an area in which the historical origins and relationships between various elements create a cohesive sense of place that is worth keeping. Conservation areas are identified by analysing their heritage significance and the special characteristics that make up that significance; these may include subdivision and street pattern, vegetation, the consistency of building materials, form and scale, or the common age of the building stock and historical associations. In the North Sydney buildings in conservation areas are identified by the following categories: contributory, neural and uncharacteristic.
Contributory items are essential to retain an area's significance, they are the link between the present and an area's history. They are buildings, sites and site features within a conservation area which contribute to the heritage significance of the area in part because of their age and integrity. Contributory items individually are not outstanding examples of a period or style of development and, therefore, are not listed as Heritage items. However they do have a collective significance and loss of any one of them will erode the heritage significance of the area as a whole. Demolition of Contributory items is not permitted under NSLEP 2001. Council's controls aim to retain contributory items in their significant form. These items may be altered provided that the work does not reduce their heritage significance.
Neutral items generally demonstrate use of compatible materials and display characteristic features, forms or scale which still contribute to the significance of the area as a whole. Neutral items can often be modified by removal of uncharacteristic elements and therefore become more contributory. These alterations should be undertaken in consideration of the predominant characteristics identified for each conservation area. Guidelines for development in conservation areas are found in this section and the character statement for each conservation area. Demolition of contributory and neutral items is discouraged by Council's development controls. Consider alternatives to demolition. Some buildings can sustain a considerable amount of change provided that change is undertaken in the context of the character of the conservation area.
Uncharacteristic elements exhibit characteristics which detract from the character and heritage significance of a conservation area. Some uncharacteristic elements may be demolished without a negative impact on the significance of the conservation area. Uncharacteristic elements will not be considered as a precedent for new work when assessing the merit of an application for development in a conservation area. Uncharacteristic elements are identified in Schedule 5 of the NSLEP 2001.