COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA2022/0815 for the demolition of existing structures and construction of a residential flat building over a basement (the proposal), at 5 Bruce Street, Ashfield (the site), by the Inner West Council (the Council).
The appeal was subject to conciliation on 14 April 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.
Issues
The Council's primary contentions can be summarised as:
The development is prohibited as residential flat buildings are not permissible in the R2 Low Density zone under the Inner West Local Environmental Plan 2022 (LEP 2022) and the Applicant has not satisfactorily demonstrated that the building was lawfully used for flats at the relevant date.
The proposal results in an unacceptable impact on the heritage significance of the heritage conservation area.
The proposal does not comply with the floor space ratio (FSR) development standard for the site of 0.5:1 and as a result, the bulk and scale of the building envelope is excessive. The building envelope has an unacceptable amenity impact on neighbouring properties.
The proposal has an unacceptable impact on the streetscape of Bruce Street.
The application is amended
Leave was unopposed and granted for the Applicant to amend the application to rely on the architectural plans admitted as Exhibit A, and the landscape plans and other documents admitted as Exhibits B and C. The Applicant agreed to pay those costs of the Council thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the EPA Act, in relation to the amendments made to the proposal in the plans and documents admitted as Exhibits B and C. The parties agreed that the amendments made to the architectural plans, admitted as Exhibit A, were minor within the meaning of s 8.15(3) of the EPA Act.
The site and its context
The site is on the western side of Bruce Street, Ashfield, with a site area of 921.8m2. The site contains a two storey building and some outbuildings.
There is a single storey dwelling on the property adjoining the site to the north, and a three-storey residential flat building raised on pilotis over ground level parking on the property adjoining the site to the south.
The proposal
The proposal, as amended, is to demolish the existing structures on the site and construct a two-storey residential flat building over basement parking. The proposal includes eight apartments, four on each level, comprising six two-bedroom apartments and two one-bedroom apartments.
Planning framework
The relevant provisions for existing uses are under Div 4.11 of the EPA Act.
The site is zoned R2 Low Density Residential and residential flat buildings are prohibited in the R2 zone under LEP 2022. The Applicant relies on the residential flat building being an existing use, pursuant to s 4.65 of the EPA Act. The objectives of the R2 zone are:
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To provide residential development that maintains the character of built and natural features in the surrounding area.
The FSR for the site is 0.5:1 pursuant to cl 4.4 of LEP 2022. The proposal has a FSR of 0.66:1. The application includes a cl 4.6 written request to contravene the development standard (Ex K). The objectives of the FSR development standard, at cl 4.4(1) of LEP 2022, are:
(a) to establish a maximum floor space ratio to enable appropriate development density,
(b) to ensure development density reflects its locality,
(c) to provide an appropriate transition between development of different densities,
(d) to minimise adverse impacts on local amenity,
(e) to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.
The site is within a heritage conservation area, the Federal Fyle heritage conservation area (FF HCA). Demolition of the existing building requires development consent, pursuant to cl 5.10(2)(a)(iii) of LEP 2022. The consent authority, or the Court exercising the functions of the consent authority, must, before granting consent under cl 5.10 in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area concerned, pursuant to cl 5.10(4) of LEP 2022.
The Comprehensive Inner West Development Control Plan 2016 (DCP 2016) applies to the proposal under Part 1 "Application" of DCP 2016. The following provisions of Part 3 Heritage Conservation Areas, Part 8 Demolition and Part 9 Heritage Conservation Areas Character Statements and Rankings, are a relevant consideration:
"3.2 Contributory Buildings (Building Rankings Contributory 1 and 2)
Contributory buildings, such as houses (Building rankings 1 and 2) are buildings that make an important and significant contribution to the character and significance of the HCA. They are buildings that:
• date from the Key period of significance for the HCA (as outlined in the Area Character Statement for the HCA);
• have a high to reasonable degree of fabric integrity.
The most important part of a contributory building that is required to be retained is the building under the main roof form. The elements of the building, under the main roof form, that these controls require to be retained are:
• the roof form and any original use of materials
• original wall finishes
• original joinery
• original verandahs and applied detail such as chimneys, window hoods, etc.
…
8.1 Demolition affecting heritage items or within heritage conservation areas
…
Neutral and Detracting buildings
C1 Where demolition of a neutral or detracting building is proposed:
a) The application must include the design of the new development proposed for the site; and
b) A SOHI establishing that the demolition does not have an adverse impact on the adjoining buildings (that is both physical and contextual impacts) and how the new building addresses the heritage values of the precinct within which it is located (refer to requirements for infill buildings).
C13 Federal Fyle, Ashfield Heritage Conservation area
KEY PERIOD OF SIGNIFICANCE: 1879 to 1940s
HCA TYPE 3: MIXED RESIDENTIAL
STATEMENT OF SIGNIFICANCE
The Federal-Fyle Heritage Conservation Area is of local heritage significance.
The area is of historical significance as an area developed after 1879, predominantly in the Federation to Inter-war period, with its variety of housing periods and styles reflecting the different subdivisions and periods of subdivision during its development, some of which involved building covenants to ensure development of higher quality housing.
The area is of aesthetic significance for its varied streetscapes within the development period 1879-1940s encompassing predominantly detached single storey houses in Victorian Filigree, Federation Queen Anne and Inter-war California Bungalow styles, however also including Federation period semi-detached and detached weatherboard houses and one 2-storey Inter-war Art Deco style flat building. The early 20th century street tree plantings of brush box in the carriageways of Oak Street and Federal Avenue increase the aesthetic appeal of these streetscapes.
…
Elements that contribute to the consistency of the streetscape (visible from the public domain)
• Predominantly detached face brick single storey housing in Federation Queen Anne and Inter-war California bungalow styles
• Some 1920s-1930s brick single storey bungalows
• Some Federation Queen Anne and Inter-war period semi-detached pairs of housing (Nos. 18-20, 22-24 Federal Avenue, Nos 1-3 Federal Avenue)
• Inter-war Art Deco style 2-storey brick flat buildings (example 8A Oak Street)
• A few detached Victorian period masonry houses (examples 4, 6, 8 Ormond Street, 19 Wallace Street) • A few single storey detached weatherboard houses circa 1890-1910 (examples 9, 11, 13 Wallace Street)
• Original details such as:
• Front verandahs or balconies with original detailing
• Original roof forms with original cladding of slate, corrugated steel (Victorian period) or slate, unglazed
terracotta tile or corrugated steel (Federation period), or unglazed terracotta tile (Inter-war period) and original chimneys
• Gable ends facing the street with original timber shingled, roughcast stucco or imitation half-timbered finishes (Federation, Inter-war periods)
• Face brickwork or weatherboard walls (Federation, Inter-war periods)
• Rendered brickwork or weatherboard walls (Victorian period)
• Original timber-framed windows and timber panelled doors consistent with the periods and styles of houses
• Original front fences - timber picket, low brick, brick & timber picket, or timber framed wire mesh, for Federation and
Inter-war period houses; timber pickets or cast iron palisade fences for Victorian period houses
NON-CONTRIBUTORY ELEMENTS
• Recent or heavily altered houses with difficult to reverse uncharacteristic alterations (examples 8A-8B Bruce Street, 5 Bruce Street, 15 Elizabeth St, 4-6, 7, 14 Federal Avenue, 21, 27, 34 Oak Street, 5 Ormond Street, 23, 25, 14, 28 Wallace Street)
• 1960s-1970s residential flat buildings (examples 7, 7A Bruce Street)
• Changes to materials: Cement rendering of face brickwork to Federation, Inter-war period houses; modern roof cladding and loss of chimneys (examples concrete roof tiles)
• Carports in front gardens (example 18, 22 Federal Avenue)
• Front verandah enclosures (14 Bruce Street, 17 Elizabeth Street)
• Modern front fences of unsympathetic design and materials, particularly high solid masonry front fences
…"
(Emphasis added.)
The site is identified as a rating of 4 in the FF HCA, and as "Victorian Italianate". A rating of 4 is defined under the Building Ranking Definitions of DCP 2016 as follows:
"Detracting:
Buildings from a construction period which falls outside the Key Period of Significance for the HCA that have scale or form that is not consistent with the key characteristics of the area"
Public submissions
Three resident objectors gave evidence at the commencement of the hearing onsite. Their concerns can be summarised as:
The existing building is worthy of retention for its contribution to the collective heritage significance of the heritage conservation area.
The setbacks of the proposal are insufficient.
Expert evidence
The Applicant relied on the expert evidence of Stephen Davies (heritage), Anthony Betros (planning), Sam Allouche (arboriculture) and Ali Beydoun (landscape).
The Council relied on the expert evidence of Robert Moore (heritage), Kerry Gordon (planning) and Catriona Mackenzie (arboriculture and landscape).
The existing building contributes to the collective heritage significance of the FF HCA
According to Mr Moore:
"The removal of the existing building, with its demonstrable part in the historical development of the HCA and locality, and its conformity with the pattern of development in the HCA, would diminish the overall heritage significance of the HCA by removing a building which adds to the diversity and depth of interest in the buildings of the HCA, which conforms to its pattern and character of development and which reflects its key development period…
The heritage item next door would lose the residential context of single-house-per-lot development which prevails in the HCA and which contributes to both its setting and amenity as a heritage property and residential dwelling."
According to Mr Davies:
"The changes in use of the building resulted in significant alterations and additions to the original dwelling on the site that resulted in Council identifying the building as "detracting" …
Its "detracting" status is the result of the unsympathetic changes that have occurred over time as documented in the HIS. At no time in the history of this application has Council taking action to alter this classification but has remained in genuine engagement regarding the scale and form of the proposed new building."
According to Mr Moore, the classification of the existing building as detracting is incorrect, as the building dates from a key period of significance in the HCA. In his view, the building was not properly assessed, nor understood for its true substance behind an altered street façade. It's potential for adaptive reuse and contributory value becomes obvious on proper inspection. Mr Moore identified the following extant fabric and details; original brickwork is largely exposed, two original chimneys (featuring ashlar render), terracotta hipped roof, original entrance doorframe and highlight, original external French doors at ground level, original four panel doors, original timber skirting and architraves, original timber fireplace mantles and cast-iron inserts, and original (but partly damaged) dining room decorative plasterwork ceiling. In Mr Moore's view, the majority of the building's fabric survives in a manner that can be respected, enhanced and add to the adapted house, notwithstanding the loss of the main stair, as the key spaces survive. The existing house has the potential for adaptation to achieve an attractive, contributory building to the HCA, with accommodation of high amenity.
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Consideration
I accept and agree with Mr Moore's evidence. The classification of the existing building as detracting within the FF HCA is incorrect. The existing building dates from a construction period within the Key Period of Significance for the FF HCA and has a scale and form that is consistent with the identified key characteristics for the area. I accept and agree with Mr Moore's evidence that the existing building has been incorrectly assessed as falling within the category of, "heavily altered houses with difficult to reverse uncharacteristic alterations".
The extant fabric (including the façades, original chimneys, the form of the roof, the original entrance and the French doors) is immediately identifiable, when viewed in the streetscape, as a substantial Victorian villa, despite the changes to the street façade. The existing building, as a substantial Victorian villa, dates from one of the key periods of significance and, despite the changes that have been made, makes a contribution to the character and significance of the FF HCA. I am satisfied that the existing building contributes to the collective heritage significance of the FF HCA and that the unsympathetic alterations to the front façade are not so overwhelming to the overall form and intactness of the building so as to make it detracting within the FF HCA.
The existing building can be successfully adapted and added to, to achieve a single dwelling, or a residential flat building, whilst maintaining its overall form and significant fabric in order to preserve its contribution to the collective heritage significance of the FF HCA. The existing building does not need to be restored, or demolished fabric reinstated, for it to continue to be contributory to the FF HCA.
The Applicant submitted that the Council's heritage contention proceeds on a misconceived basis, that the Council has wrongly classified the building in the DCP 2016. Such contentions are not open to the Council to argue. The DCP 2016 provisions comprise an exhibited policy and so must be a focal point of consideration under s 4.15 of the EPA Act. To ignore the DCP provisions and to contend that the existing dwelling is neutral or of heritage significance is to apply a different test to that in the DCP 2016. This approach is contrary to the decision in Botany Bay City Council v Premier Customs Services Pty Limited (2009) 172 LGERA 338; [2009] NSWCA 226 at [32].
I do not accept that finding that this building was incorrectly classified as detracting in DCP 2016 amounts to "put[ting] aside the standard set by the DCP and applying [my] own standard of what is reasonable" (Botany Bay City Council v Premier Customs Services Pty Limited (2009) 172 LGERA 338; [2009] NSWCA 226 at p 346). I have carefully applied the terms of DCP 2016 in regard to the evidence of the heritage experts and concluded that the application of the definitions under DCP 2016 have been wrongly applied by the author of the cursory heritage study to this building. I have not ignored the DCP 2016 provisions, nor applied a different test to that in the DCP 2016. I have merely disregarded the individual assessment for this building.
I am satisfied by all of the evidence before me that the effect of the proposal to demolish the existing building would be detrimental to the identified heritage significance of the FF HCA, pursuant to s 5.10(4) of LEP 2022.
Conclusion
As the proposed demolition of the existing building is determinative of the appeal, it is not necessary to determine the Council's remaining contentions.
Orders
The orders of the Court are:
1. The Applicant is granted leave to amend the application to rely on amended plans and documents admitted into evidence as Exhibits A, B and C.
2. The Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application (Exhibits B and C), pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
3. The appeal is dismissed.
4. Development Application No DA/2022/815 for the demolition of existing structures and construction of a residential flat building, at 5 Bruce Street, Ashfield, is refused.
5. The exhibits, other than Exhibit 1, are returned.
Susan O'Neill
Commissioner of the Court
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Decision last updated: 07 December 2023