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[2014] NSWLEC 1035
Land and Environment Court (NSW)
2014-02-25
Original judgment source is linked above.
Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 148/2013 for the demolition of the existing dwelling and construction of a three storey seniors living development over a basement carpark (the proposal), at 21 Shirley Road, Wollstonecraft (the site), by North Sydney Council (the Council). 2The appeal was subject to mandatory conciliation on 25 October 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached during the conciliation phase, the conciliation conference was terminated on 6 November 2013 pursuant to s34(4) of the LEC Act.
Issues 3The Council's contentions in the matter can be summarised as:
The site and its context 5The site is on the eastern side of Shirley Road, Wollstonecraft and has a frontage to Shirley Road of 19.48m and a site area of 1248sqm. The site contains a Federation period, single storey dwelling, constructed c1910 (the existing dwelling). 6Adjoining the site to the north is a four storey residential apartment building, constructed c1960s, with parking at ground level and three storeys of apartments over. Adjoining the site to the south is a three storey residential apartment building with a ground floor elevated above natural ground level. 7Shirley Road falls towards the harbour to the south, along the ridge of the peninsula that ends in the Berry Island Reserve. Shirley Road contains a mix of one and two storey dwellings, with some apartment buildings and a few early twentieth century grand mansions.
Background and the amended proposal 8The development application was lodged on 15 May 2013 and notified to adjoining and nearby properties. 9The amended proposal is to demolish the existing Federation era dwelling and to construct ten seniors living apartments, including eight 2 bedroom apartments and two 3 bedroom apartments, over a basement carpark with 12 car spaces.
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.
Public submissions 25The hearing commenced with a view of the site and surrounding area and the evidence of six resident objectors. Their concerns can be summarised as:
Expert evidence 26Expert evidence was provided on behalf of the applicant by Mr Kerry Nash (planning), Mr Robert Staas (heritage) and Mr Robert Varga (traffic). 27Expert evidence was provided on behalf of the Council by Ms Lara Huckstepp (planning and traffic) and Mr David Logan (heritage).
Reference in the Planners' Joint Report (exhibit 6) to the Helou planning principle 28In opening, Mr Staunton submitted that the reference in the planners' joint report (exhibit 6, p7), by Ms Huckstepp, to steps 3 to 5 of the Helou planning principle (Helou v Strathfield Municipal Council [2006] NSWLEC 66 par 46) should be struck out for the following reasons:
Is the demolition of the existing dwelling acceptable?
Evidence 32The heritage experts agreed on the following:
Findings 35I accept the heritage experts' agreement that the existing dwelling contributes to the identified heritage significance of the WCA and that it dates from the core period of development within the WCA. 36I accept that the visual setting of the existing dwelling has been adversely affected by the uncharacteristic residential flat buildings on either side, however I prefer Mr Logan's view that this does not compromise the contribution the dwelling makes to the WCA and the contribution it makes to the setting of the heritage items in the northern portion of the WCA. 37Retaining the WCA is dependent on retaining the contributory items within it, as the incremental loss of contributory items and other historic elements diminishes both the historic and aesthetic values of the conservation area. This is because it is not each individual contributory building in isolation that is significant, but the group as a whole, along with the heritage items, that has collective significance and their retention as a group is essential to preserving the character of the WCA. The demolition of the existing dwelling would diminish the collective significance of the WCA. 38Subclause 33(b) of SEPPSL requires the proposal to 'retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items.' The proposal to demolish the existing dwelling will retain, but diminish, the identified heritage significance of the WCA. 'Retain' does not mean 'retain but diminish'. For this reason, the proposal to demolish the existing dwelling, identified as a contributory item in the WCA, does not satisfy the design principles set out at subcl 33(b) of SEPPSL, to retain any heritage conservation area in the vicinity.
Will the amended proposal complement and sensitively harmonise with the WCA?
Evidence 39According to Mr Staas, the amended proposal achieves a 'suitable infill fit in its location' (exhibit 5, p 10) and he said in oral evidence that the amended proposal is transitional in the streetscape between the two residential apartment buildings and that the street facade is appropriately articulated and a sensitive interpretation of traditional forms. 40According to Mr Logan (exhibit 5, pp 16, 21, 23): 'The new building would also create a row of three uncharacteristic developments opposite, and within the setting of, the three listed heritage items on the on the west side of Shirley Road. The proposed replacement development, like its other uncharacteristic neighbours, would be of a scale and bulk well in excess of the characteristic and predominant scale of development in the area which is identified in the DCP as being 'one or two storey'.' 'The proposal is greater in length than the majority of characteristic development, which in combination with its height, creates a building of considerable bulk that would be unsympathetic to the predominant streetscape character.' 'Constructing a new development of similar scale and bulk to the uncharacteristic buildings, would only exacerbate the existing inappropriate situation and further damage the heritage significance of the WCA. The combined built form would dominate the streetscape to an inappropriate degree. It would create a sense of newer development dominating the historic environment of this area.' 41Mr Staas said in oral evidence that the statement of character of the area is incorrect, as the character of the WCA is not consistent, nor is it largely intact, as it is largely modified with an inconsistent scale. In regard to the zoning of the site, he said the following (exhibit 5, p 21): 'The more recent zoning of the site by Council as R3 as opposed to the more restrictive zoning of the remainder of sites in the Conservation Area, provides for the possibility of redevelopment with consent for residential flat development. This action by Council for acknowledging the development potential of this site and its location between two taller residential flat buildings are both factors that should be considered...' 42The planning and heritage experts all agreed that the character of the northern end of the WCA, containing the site, can be distinguished from the character of the rest of the WCA. 43Ms Huckstepp said in oral evidence that the site is within the R3 zone because properties around railway stations are consistently zoned R3 and the zoning does not take account of conservation areas or heritage items. She agreed that the southern part of the WCA has more low scale housing than the northern portion and that the character statement does not distinguish between the R3 and E4 zones within the WCA. 44According to Mr Nash, the R3 zoning of the site distinguishes and differentiates the redevelopment potential of the site from the remainder of the WCA (exhibit 6, par 3.2.2.11). He states the following in relation to the scale of the northern portion of the WCA (exhibit 6, par 3.3.3.3): '(ii) the Inter-War Residential Flat Buildings at 44 and 44A Shirley Road whilst 3 and 2 storeys respectively read as an equivalent 4 or 3 storey building due to the high floor to ceiling dimensions; (iii) the presence of the two residential flat building at 19 and 23 Shirley Road cannot be ignored in streetscape terms and the proposed development will be subservient in height and scale to both buildings; and (iv) similarly, the building at 25 Shirley Road whilst 2 storeys in height is the equivalent of a 3/4 storey building.'
Submissions 45The properties at the northern end of the WCA, including the site, are within the Residential B zone under LEP 2001 and the R3 zone, Medium Density Residential, under LEP 2013. The rest of the WCA is within the Residential A1 zone under LEP 2001 and the E4 zone, Environmental Living, under LEP 2013. The zone boundary on the eastern side of Shirley Road is on the southern side boundary of 19 Shirley Road, the residential flat building adjoining the site. The zone boundary on the western side of Shirley Road is further to the north, on the southern boundary of 44 Shirley Road, so that the dwellings opposite the site, including the heritage items at 36 and 42 Shirley Road, are within the E4 zone. 46The applicant submits that the objectives of the R3 zone, quoted above at paragraph 21, encourage a medium density residential environment with a variety of housing types. 47The Council submits that the zone boundaries have not changed between LEP 2001 and LEP 2013 and the R3 zone boundary intentionally includes the existing residential flat buildings either side of the site and therefore, the site.
Findings 48Subclause 33(a) of SEPPSL requires the amended proposal to 'recognise the desirable elements of the location's current character', so that the proposal may contribute to the quality and identity of the area. 49It is clear from Council's identification of 19 and 23 Shirley Road as being 'intrusive' within the WCA that the attributes of these residential apartment buildings cannot be described as desirable elements of the character of the WCA and therefore any new development proposal cannot be justified by relying on elements of these intrusive residential flat buildings. 50I accept the agreement of the experts that the character of the northern end of the WCA, containing the site, can be distinguished from the character of the rest of the WCA. While I appreciate that a number of the buildings within the northern portion of the WCA and within the R3 zone are of a substantial scale; other than the two intrusive residential apartment buildings, they consist of evocative early 20th century grand mansions (25 Shirley Road, now occupied by the Tresillian Family Care Centre and 46 Shirley Road, now divided into residential flats and both heritage items) and Inter-War residential flat buildings (44 and 44A Shirley Road). These buildings contribute to the character of the WCA. While the Inter-War apartment buildings are not identified as contributory items, they are specifically mentioned in the 'conservation area character' quoted above at paragraph 23. 51Therefore, in order to contribute to the quality and identity of the area, a new development within the northern portion of the WCA would need to disregard the intrusive c1960s residential flat buildings, be appropriately deferential and sympathetic to the heritage items and maintain the development pattern and domestic scale of the WCA. I accept that a development within the R3 zone and northern portion of the WCA may be larger than a development in the E4 zone, however, in my view, any development on the site should generally maintain the domestic scale of its neighbours on the western side of Shirley Road, as the site provides part of the setting for the heritage items at 36 and 42 Shirley Road and to a lesser extent, 25 and 46 Shirley Road and it mitigates the scale of the intrusive residential flat buildings on either side. 52The amended proposal is a three storey residential flat building over a basement parking level. In order to achieve the three storeys within the height limit imposed by cl 50(a) of SEPPSL, the proposal has been pushed into the ground, such that the ground level of the proposal at RL 48.5 (which also has a basement parking level below) is well below the existing ground level, which is demonstrated by the street elevation of the amended proposal (exhibit M, DA 03.01), where the ground floor level is 2.6m below ground level on the northern side and 1.1m below ground level on the southern side. By comparison, the elevated ground floor level of the existing dwelling is RL 51.78, which is 3.28m higher than the ground floor of the amended proposal, effectively a whole floor level higher. The front garden courtyards, at RL 48.5, are 1.34m below the current ground level in the centre of the front yard, RL 49.84. This feature of dropping the building into the site is uncharacteristic in the WCA and it does not disguise the three storey nature of the proposal. 53I prefer and adopt Mr Logan's evidence regarding the scale and bulk of the amended proposal. The proposal would be of a scale and bulk well in excess of the characteristic and predominant scale of development in the WCA and of a scale that is not warranted for a 'neutral' building within the WCA. The amended proposal would create a row of three uncharacteristic buildings, which would dominate the streetscape to an inappropriate degree and detract from the setting of the heritage items at 25, 36, 42 and 46 Shirley Road, in the vicinity of the site. 54For these reasons, it is my view that the amended proposal does not demonstrate that adequate regard has been given to the to the design principles set out at subcl 33(b) of SEPPSL, to complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items.
Conclusion 55For the reasons set out in the judgment, I find that the proposal to demolish the existing dwelling, identified as a contributory item in the WCA, does not satisfy the design principles set out at subcl 33(b) of SEPPSL, to retain any heritage conservation area in the vicinity, as the proposed demolition of the existing dwelling would diminish both the historic and aesthetic values of the conservation area and its collective significance. 56For the reasons set out in the judgment, I find that the amended proposal for a seniors living development does not demonstrate that adequate regard has been given to the to the design principles set out at subcl 33(b) of SEPPSL, to complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items, as the amended proposal is of a scale and bulk well in excess of the characteristic and predominant scale of development in the WCA and of a scale that is not warranted for a 'neutral' building within the WCA. 57Given the above findings, it is not necessary to make a finding on whether an on site passing bay would assist in the reduction of any on-street queuing of cars entering and exiting the site.
Orders 58The orders of the Court are:
Susan O'Neill Commissioner of the Court
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. Decision last updated: 04 March 2014
Bourke
North Sydney Council