Cox v Newcastle City Council [2020] NSWLEC 1081 | Case summary

Land and Environment Court (NSW)|2020-01-23

Judgment

COMMISSIONER: The Applicant seeks consent for alterations and additions to the existing building at 65 Frederick Street, Merewether. Approval is sought via a modification application pursuant to s 4.55(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The alterations consist of the construction of external additions to the ground floor verandah comprising:

Construction of a masonry surfboard store to the southern end of the verandah;
An enveloping timber screen north of the surfboard store;
A 'hit and miss' brick screen to the north of the entry door that extends to the living room doors; and
A timber screen on the northern edge of the verandah to the driveway
(Statement of Environmental Effects, Class 1 Application, filed 30 April 2019)

The application was refused by Council and the Applicant appeals that refusal pursuant to s 8.9 of the EPA Act.
The appeal was subject to mandatory conciliation on 22 January 2020 (s 34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act).
Council maintains that the development warrants refusal on the following grounds:

That the proposed alterations and additions have an unreasonable detrimental impact on the subject building, which is listed as a heritage item in the Newcastle Local Environmental Plan 2012 (LEP 2012);
With respect to the proposed installation of two Velux roof windows, the application does not provide sufficient information for Council to adequately assess their suitability.

Site and locality

The subject property is known as 65 Frederick Street, Merewether (Lot 200 DP 88297065). It contains a single dwelling which is listed as a local heritage in LEP 2012) item (former Racecourse Inn I297).
The Statement of Significance on the NSW Heritage Register for the item states: "The building has historic significance as the former Racecourse Inn, believed to have been built between 1840-1850. It was constructed close to the grandstand of the former racecourse set up by prominent Newcastle identities, James Hannell and Peter Fleming, in the 1840's. The precise date of construction is not known. The last race on the site was in 1856 when the AA Coy leased an area of their estate in Broadmeadow to the Newcastle Jockey Club. The building has been extended and modified over time reflecting its changing uses, however it continues to provide evidence of the original racecourse on the site. As an inn it was frequented by bushrangers and sailors. The property was taken over by the Country Womens' Association in 1913 and used as a seaside hostel, and since the 1960's it has been a private residence. It is aesthetically significant for its Victorian form and massing and is evocative of the social life of the community during a very early period of Merewether's history. The building is demonstrative of the way in which buildings are used and adapted over time, reflecting changes in land use, and social history. Interiors of interest." (Exhibit 3)

Public submissions

The application was publically notified in accordance with Councils' Public Notification Policy. No submissions were received objecting to the proposal.

Planning controls

The modification application is made pursuant to s 4.55(1A) of the EPA Act. The provision is as follows: (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification.
The Respondent does not contend that the preconditions at s 4.55(1A)(a) or (b), that the proposed modification is of minimal environmental impact or that it is substantially the same development, are not met by the application.
At s 4.55(3) of the EPA Act, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
Relevant to s 4.55(3) of the EPA Act, Mr Pickles SC, for the Respondent, submits that a fundamental element of the original approval was to reinstate and restore the building, especially the upper level verandah and the fenestration in the street front façade. In support of this submission, Mr Pickles relies on the planning assessment report for the grant of consent to the original development. In particular, the following extract: "The allotment is a local heritage item (Former Racecourse Inn, I1297). This assessment notes the proposed development incorporates alterations to the existing two storey contributory building (rendered brick with a sheeted hip roof), and two-storey pavilion additions to the rear of the allotment. The proposed design has been assessed on its merits in accordance with the relevant heritage provisions. The following comments are made concerning this proposal: - it is considered that this Georgian building (Former Racecourse Inn) is a significant building in Newcastle's history, with respect to its historical, aesthetic and social contribution. - whilst Georgian architecture would not have included verandah/balconies, it is recognised that the open verandah has been part of the historical layer of the building. In this regard, it is considered that this application will reinforce and reinstate the existing building (materials, details and finishes) to an earlier known state, and to a serviceable condition commensurate with its heritage significance. Contributory fenestration, doorways and internal openings within the existing contributory building will remain and be reinstated under this application. A proposed two-storey pavilion is replacing unsympathetic single storey additions to the rear. It has been considered that the height of the pavilion addition is consistent and subservient to the existing contributory building, which clearly separates the new work from old. It is considered the proposed bulk and form of the additions is appropriate in this heritage setting, and it has been assessed (that) the proposed development's mass and form remains out of view from the street and adjoining public spaces." (Exhibit 3)
Further, Mr Pickles notes that the original consent was issued with a variation to the maximum permissible floor space ratio (FSR) applicable to the site. By reference to the assessment report for the grant of consent to the original development, the following reasons were provided: "Clause 4.6 of the Newcastle LEP 2012 permits Council to approve a development even though the development may contravene a development standard. The objectives of Clause 4.6 permit the consent authority to apply flexibility to development standards in particular circumstances, where a written request for the contravention of the development standard is submitted by the applicant on either unreasonable/unnecessary grounds or sufficient environmental planning grounds. The following justification has been provided by the designer regarding the contravention of the development standard: - Allowing this minor variation to the development standard will facilitate the restoration of a heritage item which has been neglected for many years. - A number of other dwellings in the immediate vicinity appear to contravene the development standard as the dwellings were constructed when the control was a DCP guideline. - The bulk and scale of the dwelling presenting to the street will be reduced as the existing unsympathetic additions to the verandah are proposed to be removed. - The additional floor space is located at the rear of the allotment and is not visible from the street. The resulting bulk and scale in rear of the development is consistent with surrounding development and has been designed to minimise impacts from overshadowing and privacy. It is considered the bulk and scale of the development will not adversely impact the existing built form, character or streetscape of the existing building in the context of the streetscape. … It is considered that there are sufficient environmental planning grounds to justify the contravention of the development standard in this instance, given the applicant's request for exception. It is considered the proposal respects the amenity, heritage and character of the existing building and the quality of the environment in accordance with the R2 zone objectives. It is also recognised that cl. 5.10(10) permits Council to apply conservation incentives for development that would otherwise not be allowed under the LEP. In this regard, the amended design has suitably demonstrated that the heritage item will be suitably conserved and reinstated under this consent, appropriate to its heritage significance. …" (Exhibit 3)
The application is also subject to the provisions of LEP 2012. Clause 2.3(2) of LEP 2012 requires the consent authority to have regard to the zone objectives. The subject site is zoned R2 Low Density Residential which has the following objectives: • To provide for the housing needs of the community within a low density environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.
Given the site contains a heritage item, cl 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, 'Heritage Conservation' at subcl (1), are to conserve the environmental heritage of the City of Newcastle and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at subcl (4).
Newcastle Development Control Plan 2012 (DCP 2012) applies. Relevant to the proceedings are the following sections of DCP 2012:

3.02.03 Street Frontage Appearance: "Performance Criteria 1. Development complements and harmonises with the positive elements of existing development in the street. 2. Setbacks are compatible with the existing or intended local streetscape. 3. Garages and carports are integrated into a development and do not dominate the streetscape. 4. Development provides passive surveillance of the street. 5. Dwellings address the street Acceptable Solutions … 6. Dwelling have a front door and window of a habitable room facing the primary road. …"
3.02.06 Private Open Space "Performance Criteria 1. Dwellings are provided with adequate private open space which is useable and meets the needs of the occupants. Acceptable Solutions … 3. The principal area of private open space is not located within the front setback to the primary road."
5.05 Heritage Items "5.05.01 General Principles 1. Encourage the retention of existing heritage items 2. Demonstrate an understanding of the heritage significance of items 3. Encourage heritage items to be used for purposes that are appropriate to their heritage significance 4. Maintain a suitable setting for the heritage item 5. Encourage removal of unsympathetic alterations and additions and reinstatement of original features and details. 6. Support ongoing maintenance, care and use of heritage items. Controls General controls applying to all development on land consisting of a heritage item 1. Any development application for works to a heritage item is accompanied by a Heritage Impact Statement, Conservation Management Plan, or Conservation Management Strategy, as required by the Newcastle Local Environmental Plan 2012. 2. Development of a heritage item: (a) is consistent with the Heritage Impact Statement, Conservation Management Plan or Conservation Management Strategy (b) is consistent with the Statement of Heritage significance for the item (c) protects the setting of the heritage item (d) retains the significant internal and external spaces and to recycle, re-purpose and reuse fabric and building elements (e) avoids "facadism" by using all of the components of the building including, but not limited to, the structure, floor, roof, floor and wall framing, fittings and finishes, fabric and materials (f) removes alterations and additions that are unsympathetic to the heritage significance of the heritage item (g) reinstates missing building elements and details (h) uses materials, finishes, and colours that are appropriate to the architecture, style and age of the heritage item (i). reinforces the dimensions, pattern and style of the original window and door openings of the heritage item (j) maintains and repairs building elements in order to retain the heritage item in a serviceable condition commensurate with its heritage significance."

'Principal private open space' is defined in DCP 2012 as: a 3m x 4m level area of private open space directly accessible from the main living area of the dwelling.

Expert evidence

Heritage evidence in the proceedings is provided by Mr David Lamb for the Respondent. His expert report is marked Exhibit 2.
Mr Cox relies on the Statement of Heritage Impact prepared by Stephen Booker, Carste Studio in 2018 (Booker HIS) filed with the Class 1 Application.
Mr Lamb's evidence is that the proposed development is inconsistent with the provisions of cl 5.10 of LEP 2012. He disagrees with the assessment and conclusions of the Booker HIS. His reasons can be summarised as follows:

The unauthorised construction which seeks to be approved in the modification is 'inconsistent with the original, significant use of the place as a hotel and the subsequent use by the Country Women's Association' (Exhibit 2).
The work 'obscures the ground floor fenestration from view, thereby disrupting interpretation of the building in its context' (Exhibit 2).
Counter to the Booker HIS, Mr Lamb concludes that the works are highly visible in the public domain.
That the use of recycled look brick is inappropriate as it is atypical to the character of the original building. Further, he concludes that the utilisation of two different bricks and the range of materials proposed in the front façade is inappropriate and detrimental to the significance of the heritage building.
That the works to the ground level verandah confuse the interpretation of the building.
That the works are unsympathetic to the heritage significance of the heritage item. (Exhibit 2)

Further, Mr Lamb concludes that the works are inconsistent with the objectives of Section 5.05.01 of DCP 2012 and in particular Control 2 (d) (refer to [15]) which seeks to retain significant internal and external spaces in heritage items.
In the concluding comments of his evidence Mr Lamb states: "the alterations to the ground floor external space do not retain this significant space. The front entry porch at street level is an important component of the original, public building and factors highly in its interpretation". (Exhibit 2)
The Booker HIS, on which the Applicant relies, was prepared in support of the modification. The assessment was prepared by reference to the architectural plans, revision D. The Booker HIS makes the following observations and conclusions about the impact of the proposed modification application:

The new work is 'not done justice in the drawings prepared, as they appear to be at odds with the surrounding construction and character of the heritage item'. When seen in person, the materials are "consistent with the enveloping verandah structure,(the) timbers screens being equivalent to the northern fence and gates as vertical slabs, finished in the same Merbau stain" (Exhibit 3).
That the new brick work utilised is a light buff colour that blends into the background. Further, the lower front wall of the main building is shaded most of the time from the upper verandah, reducing the visibility of the front facade.
That given both structures (the 'hit and miss' brick wall and the surfboard store) are set back from the verandah columns, they are subservient to the main structure.
The works are independent of the host building and are reversible.

The Booker HIS concludes: "Despite the planting, the presence of the additions to the Ground Floor verandah does not intrude on the appreciation of the built form, the sole important physical component illustrated in the Statement of Significance for the place …' It is aesthetically significant for its Victorian form and massing…'. The Ground floor interventions do not detract from nor impact on this quality, being sited entirely within the verandah form." (Exhibit 3)

Submissions

In his submissions, Mr Cox argues that the Court should give weight to the expert opinions expressed in the documents submitted with his Class 1 Application, expressed in the Statement of Environmental Effects and the Booker HIS. Further, he argues that the Court should give weight to the pragmatic reasons behind the works. Namely, a desire to improve the security and privacy of the property, reduce the acoustic impacts of passers-by in the late evening and to screen the domestic waste bins from public view.
Mr Cox submits that if the Court was to form a view that the height of the screens and the surfboard store has a detrimental impact on the heritage significance of the building, they could be reduced to 1.8m in height. Mr Cox indicated he would accept a consent condition in this regard.
In relation to the evidence of Mr Lamb, Mr Cox argues that the Court should give this evidence less weight on the basis that it lacks independence as Mr Lamb was the assessing officer for the modification application and is employed by the Respondent.
Mr Pickles submits that the proposed development should not be approved by the Court on four broad grounds. Firstly, that on the evidence of Mr Lamb the works will have a detrimental impact on the heritage significance of the dwelling, which is a matter of consideration for the Court at cl 5.10(4) of LEP 2012. Secondly, the works are inconsistent with the reasons for the Council's grant of consent for the original application, which is a matter for the Court's consideration under s 4.55(3) of the EPA Act. Thirdly, in Mr Pickles' submission to grant consent to the works would be inconsistent with the relevant provisions of DCP 2012, namely 3.02.03 at (1) which seeks to have passive surveillance of the street, 3.02.06 at (3) which places private open space to the rear of the dwelling and 5.05.01 at (5) which seeks to encourage the removal of unsympathetic additions. Finally, that the application for consent for the Velux roof windows lacks certainty and has the potential to create habitable space for which the Court has no detail.
Mr Pickles concludes the modification application should be refused.

Findings

I note that in considering the modification application, the fact that the works have been constructed without consent is not a relevant factor in determining whether to grant consent to the modification application. This was made clear by Preston CJ in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [35]: "… in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully."
The key question for the Court to determine is whether the works have a detrimental impact on the heritage significance of the item. That significance is detailed in the Statement of Significance at [6].
On the basis of my observations during the onsite view, a study of the architectural plans and colour photographs of the works in the context of the streetscape, I am satisfied that the works are highly visible. This visibility occurs both in close proximity to the site and at a distance. I am not persuaded by the conclusion of the Booker HIS that the works are not visually prominent or that the works are subservient the heritage item. I accept Mr Lamb's evidence in this regard.
Further, I am satisfied that the view of the heritage item is obscured by the physical structures occupying the front porch space and by the use of incompatible materials which distract from the heritage façade. I accept and prefer Mr Lamb's evidence that the works to the ground level verandah confuse the interpretation of the building. In reaching this conclusion, I have given weight to the emphasis in Statement of Significance to the aesthetic significance of the heritage building in its listing on the Heritage Register.
I accept the evidence of Mr Lamb that the works are inconsistent with the simplicity of form that the Statement of Significance seeks to retain; especially given the public appreciation of that heritage significance is from Frederick Street and is visually interrupted by the physical structures for which consent is sought.
In response to Mr Cox's submission on the independence of Mr Lamb I note, the expert report of Mr Lamb notes that it has been prepared in accordance with the Expert Witness Code of Conduct: Schedule 7, Uniform Civil Procedure Rules 2005 and that he agrees to be bound by it. Schedule 7 requires, amongst other obligations, that an expert witness is 'to assist the court impartially on matters relevant to the area of expertise of the witness'. I am satisfied that there is no evidence before the Court that establishes this duty has not been met.
I accept Mr Pickles' submission that consideration of the impact of the proposed development on the significance of the item is a precondition at cl 5.10(4) of LEP 2012. I am not persuaded by the conclusions of the Booker HIS filed in support of the proposed development. In particular, I am not persuaded that the works do not intrude on the appreciation of the built form, or that the ground floor interventions do not detract from nor impact on the significance of the item as they are sited entirely within the verandah form. I accept and prefer the evidence of Mr Lamb that the contrasting, uncharacteristic materials, their diversity and their form are unsympathetic and distract from the significance of the item. Further, I accept his evidence that the construction of the ground floor works serve to obscure the entry space and the reading of the fenestration and the front façade from Frederick Street.
Pursuant to cl 5.10(4) of LEP 2012 and considering the effect of the proposed development on the heritage significance of the item, I am satisfied that the effect is unacceptable and sufficient to warrant the refusal of the application.
Whilst my findings in relation to the impacts of the works on the heritage significance are sufficient to dismiss the appeal and refuse consent, it is appropriate to address Mr Pickles' submissions on s 4.55(3) of the EPA Act.
On the basis of a review of the modification application, the original heritage impact assessment, the planning officers assessment report and the consent itself, I accept Mr Pickles' submission that the original consent was approved and dispensations provided to FSR on the basis that the Applicant had demonstrated that the 'application will reinforce and reinstate the existing building (materials, details and finishes) to an earlier state commensurate with its heritage significance' (Exhibit 3). Part of the original consent included the demolition of the ground floor enclosed verandah. In taking into consideration the reasons given by the consent authority for the grant of the original consent, I am satisfied that it ought not to be modified as the Applicant seeks.

Orders

The orders of the Court are: 1. The appeal is dismissed; 2. Modification application DA 2015/0298.02 for construction of external additions to the ground floor porch and addition of two Velux roof windows at 65 Frederick Street, Merewether (Lot 200 DP 88297065) is refused. 3. The exhibits are returned with the exception of Exhibits 1 and 3. ……………. D M Dickson 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: 26 February 2020

(2006) 144 LGERA 408

Cox v Newcastle City Council

At a glance

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Decision date

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Judgment (8 paragraphs)

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Cases Cited (2)