Diamond Killara Pty Ltd v Ku-ring-gai Council

Land and Environment Court (NSW)|2014-10-29

Solicitors: Storey Gough Lawyers (Applicant)

HWL Ebsworth Lawyers (Respondent) File Number(s): 10167 of 2014

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ku-ring-gai Council (council) of a development application (DA0404/13) for a residential flat building at 22 Powell Street and 39 Werona Avenue, Killara (site).
The key issues in dispute between the parties are whether: 1. i. the objections under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to site coverage (cl 25I(6)) and zone interface setbacks (cl 25L(2)) standards in Part 3A of the Ku-ring-gai Planning Scheme Ordinance (KPSO) are well founded; 2. ii. the demolition of the existing dwelling and the new development will have unacceptable impacts on the significance of the Heritage Conservation Area and the adjoining heritage items; 3. iii. a residential flat building is antipathetic to the underlying objectives of the Draft Ku-ring-gai Local Environmental Plan 2013 (Draft LEP) and the desired future character established by the planning controls; 4. iv. the development will have unacceptable external and internal amenity impacts.

Site and locality

The site is located on the corner of Powell Street and Werona Avenue on a ridge that runs in an east west direction between the Pacific Highway and Karranga Avenue. It comprises two allotments with a combined area of 2168sqm. Each allotment contains a detached dwelling.
22 Powell Street is a single storey brick Federation style dwelling with a tiled roof. A later detached brick garage is located in the north western corner and is accessed off a driveway from Powell Street. The house is setback from Powell Street and screened by a Leighton Green hedge.
39 Werona Avenue is a two storey brick dwelling with a tiled roof built in 1938. The front and northern side of the dwelling are extensively paved and the rear garden contains a swimming pool.
The site adjoins a two storey detached dwelling to the east (24 Powell Street) and a single storey dwelling to the north on the corner of Werona Avenue and Greengate Road (33 Greengate Road). To the south, on the opposite corner of Powell Street and Werona Avenue, is a single storey dwelling (23 Powell Street). These dwellings are identified as heritage items under the KPSO.
Werona Avenue is a busy road which runs parallel to the rail corridor and provides access between Gordon and Killara. Development on the eastern side of the rail corridor is predominantly detached one and two storey dwellings. Development to the west of the rail corridor is characterised by recent residential flat buildings.

Planning controls

The site is zoned Residential 2(d3) under the zoning map in Ku-ring-gai Local Environmental Plan No.194, which amended the KPSO on 28 May 2004 to include Part 3A - Rail Corridor and St Ives Centre. Residential flat buildings are permissible with consent in the 2(d3) zone.
The aims and objectives in cl 25C of Part 3A include: (1)(a) to encourage the protection and enhancement of the environmental and heritage qualities of Ku-ring-gai, 2(a) to provide increased housing choice, …… (c) to achieve high quality urban design and architectural design, …… (e) to ensure that development for the purpose of residential flat buildings on land within Zone No 2 (d3) has regard to its impact on any heritage items in the vicinity of that development, (f) to encourage use of public transport, walking and cycling, (g) to achieve a high level of residential amenity in building design for the occupants of buildings through sun access, acoustic control, privacy protection, natural ventilation, passive security design, outdoor living, landscape design, indoor amenity and storage provision.
Clause 25D(1) provides the following heads of consideration that must be had regard to: (a) the objectives for residential zones set out in this clause, and (b) if the application is for consent for a residential flat building in Zone No 2 (d3), a statement describing the extent, if any, to which carrying out the proposed development would affect the heritage significance of any heritage item in the vicinity of the subject land.
The objectives for residential zones in cl 25D(2) that are relevant to the contentions are: …… (b) to encourage the protection of existing trees within setback areas and to encourage the provision of sufficient viable deep soil landscaping and tall trees in rear and front gardens where new development is carried out, (c) to provide side setbacks that enable effective landscaping, tree planting between buildings, separation of buildings for privacy and views from the street to rear landscaping, …… (e) to provide built upon area controls to protect the tree canopy of Ku-ring-gai, and to ensure particularly the provision of viable deep soil landscaping in order to maintain and improve the tree canopy in a sustainable way, so that tree canopy will be in scale with the built form, …… (k) to ensure sunlight access to neighbours and to provide sunlight access to occupants of the new buildings, (l) to encourage safety and security of the public domain by facing windows and building entries to the street, where appropriate, and windows to open spaces in order to maximise casual surveillance opportunities, (m) to encourage safety and security of private development by requiring a high standard of building design and landscape design, ……
Clause 25I provides site requirements and development standards for multi-unit housing. It includes heads of consideration that must be taken into account in cl 25I(1).
The standards in cl 25I include a minimum deep soil landscaping of 50% of the site area (cl 25I(2)), minimum street frontages (cl 25I(3)) and a maximum number of four storeys (cl 25I(5)). The proposal is three storey and complies with these standards. Clause 25I(6) - Maximum site coverage specifies that residential flat buildings must not occupy more than 35% of the site area. The proposal does not comply with this standard and the applicant has provided a SEPP 1 objection, which is discussed below.
Clause 25L- Zone interface provides: (1) The objective of this clause is to provide a transition in the scale of buildings between certain zones. (2) The third and fourth storey of any building on land within Zone No 2 (d3) must be set back at least 9 metres from any boundary of the site of the building with land (other than a road) that is not within Zone No 2 (d3). (3) Landscaping required to screen development from any adjoining property must be provided on the site and must not rely on landscaping on the adjoining property.
The proposal does not comply with this standard and the applicant has provided a SEPP 1 objection, which is discussed below.
The KPSO was amended by in Ku-ring-gai Local Environmental Plan 218 (the Heritage LEP) on 5 July 2013 to change the heritage provisions and add heritage conservation areas, including the Greengate Estate Heritage Conservation Area (HCA) within which the site is located. The site is in the vicinity of heritage items, including 23 and 24 Powell Street and 33 Greengate Road.
The Draft LEP is a relevant consideration under s79C(1)(a)(ii) of the EPA Act. Under the Draft LEP the site is in the R2 Low Density zone and residential flat buildings are prohibited. Clause 4.3 provides a maximum building height of 9.5m and cl 4.4 specifies a maximum floor space ratio of 0.3:1. The parties accept that the Draft LEP is imminent and certain but disagree on the whether the proposal is antipathetic to the objectives of the R2 zone and the Draft LEP, which is discussed later.
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) applies to the development. Clause 30 requires consideration of the advice of the Design Review Panel (Panel) (cl 30(2)(a)), design quality when evaluated in accordance with the design quality principles in Part 2 (cl 30(2)(b)), and the Residential Flat Design Code (RFDC) (cl 30(2)(c)).
Ku-ring-gai Multi Unit Housing Development Control Plan No 55 - Railway/Pacific Highway Corridor and St Ives Centre (the DCP) applies to land zoned Residential 2(d3) and came into force on 22 December 2004. It provides detailed objectives and controls for multi unit development which are relevant to the development including s 3 - Local Context, in particular, Development within the vicinity of a heritage item (s 3.5) and s 4 - Design principles and controls, including Density (s 4.2), which permits a maximum floor space ratio (FSR) of 1:1. The proposal has an FSR of 0.82:1 and is therefore below this control. The parties disagree on the proposal's compliance with Setbacks (s 4.3), Built form and articulation (s 4.4) and Residential amenity (s 4.5).

Proposal

The development application was lodged on 21 October 2013 and refused by council on 5 March 2014. The appeal was lodged on 24 February 2014, and the Court granted leave for the applicant to rely on amended plans on 12 June 2014 and 14 October 2014, which were renotified. The history of the application is summarised in the Amended Statement of Facts and Contentions.
The application, as amended, seeks to demolish the existing dwellings and their associated structures and construct a three storey residential flat building with 22 apartments and basement parking for 28 cars, including six visitor spaces, and landscaping. The development will be in two buildings over a single level of basement parking which is accessed off Werona Avenue. During the hearing leave was granted to the applicant to rely on further amended plans, which made minor changes to the plans that had been re-notified prior to the commencement of the hearing.

Evidence

The Court visited the site and surrounding area and heard evidence from objectors whose principle concern was that the proposed residential flat building was not characteristic of the area. In particular, its height, bulk and scale would adversely impact on the HCA and heritage items in the area. They considered the demolition of the houses on the site was unacceptable as they contributed to the HCA and the character of the area. Furthermore, the intensity of use would result in adverse amenity impacts, including increased traffic and demand for parking, noise, privacy and overshadowing.
The adjoining owners at 24 Powell Street were particular concerned about the bulk and proximity of the proposal to their property and the impact on its heritage significance, overlooking of their garden and swimming pool area and noise from the number of occupiers. The owners of 33 and 35 Greengate Road shared these concerns and considered that the proposal would adversely impact on their residential amenity and the heritage significance of 33 Greengate Road.
The Court heard evidence from the following experts:

for the council Mr J Goodwill, planning Mr P Dignam, heritage Mr M Zanardo, urban design Ms R Askew, landscape
for the applicant Mr V Milligan, planning Mr R Staas, heritage Dr P Pollard, urban design Mr R Frew, landscape

Statements of Evidence and Joint Reports were also tendered from Ms K Hawken, for the council and Mr R Varga and Mr A Young, for the applicant on traffic, engineering and stormwater. These experts reached agreement and were not required for cross examination. SEPP 1 objections
The development does not comply with Site coverage (cl 25I(6)) and Zone interface setbacks (cl 25L(2)) standards in Part 3A of the KPSO. Mr Milligan has prepared SEPP 1 objections on the basis that compliance with each standard is unreasonable and unnecessary as the objectives are met. Site coverage (cl 25I(6))
Clause 25I(6) provides that the building footprint of residential flat buildings must not occupy more than 35% of the site area (765.1sqm). The site coverage of the development is 38.74% (846.8sqm) which exceeds the standard by about 82sqm.
Mr Milligan and Mr Goodwill agree that the underlying objectives of the site coverage standard are the Heads of Consideration in cl 25I(1). They disagree on whether these are satisfied, in particular (d) and (e). Mr Milligan considers that the objectives are met because the proposal will retain existing trees and larger planting along the Powell Street and Werona Avenue setback areas and provide sufficient deep soil area to provide landscaping to screen the development.
Mr Milligan also considered that the variation to the Site coverage standard was well founded as the development responds appropriately to its context and has not maximised its FSR and height. He acknowledged that the site is constrained because of its shape, width, location in a HCA and adjoining heritage items and at a zone interface and that development standards such as FSR and height are maximums which may not be able to be achieved because of the constraints of a site. He also acknowledged that the circumstances which he outlined in the SEPP1 objection as to why compliance with the standard is unreasonable or unnecessary could be achieved by a complying development.
Mr Goodwill considers that the objectives of the Site coverage standard are not met. In particular, the setback of the southern building from Werona Avenue does not provide adequate space in front of the building for deep soil landscaping and canopy trees. It does not comply with the setback requirements in C-1(c) of s 4.3 of the DCP which require 7.7m-9.7m and a minimum of 6m or meet the objectives. He considered the landscape treatment of corner of Werona Avenue and Powell Street to be important as this part of the development would be viewed from the public domain. He accepted that the development does not need to be "invisible" but that there should be adequate setback so that the building would appear in a "landscape setting". In his opinion, this is not achieved by the minimum setback of the southern building from Werona Avenue of 3.5m and that compliance with the standard could provide more space and landscaping. The SEPP 1 objection does not demonstrate why the proposal cannot comply with the standard and is not well founded. Zone interface setbacks (cl 25L(2))
The site is located at a zone interface with 24 Powell Street and 33 Greengate Road, which are within the Residential 2(b) zone where residential flat building are prohibited. The development does not comply with the requirement in cl 25L(2) that the third storey must be setback a minimum of 9m from any boundary of the site with land (other than a road) that is not within the 2(d3) zone. The stated objective of the standard "is to provide a transition in the scale of buildings between certain zones" (cl 25L(1)). The experts agree that this includes a consideration of overlooking and overshadowing as well as bulk of the development relative to that of the adjoining development.
The experts agree that the definition of "building line or setback" in the Standard Instrument should be adopted. They agree that the zone interface setback of the development is a minimum of 6m from the eastern boundary (24 Powell Street) and 6m from the northern boundary (33 Greengate Road).
Mr Milligan considers that the objective of the standard to provide a transition in scale between the zones is achieved because of the proposed building articulation and reduced overall height and three storey form. He considers that the setbacks will not result in any unreasonable overshadowing or privacy impacts and that the landscaping will readily screen the development.
Mr Goodwill does not consider that the three storey height of the building justifies the non-compliance. He does not consider that it has been demonstrated that the development achieves a transition between the zones that is equal to or better than a complying development, particularly in terms of privacy impacts from the terraces and rooms which are three metres closer than required by the standard. He also considered that it had not been demonstrated that there are circumstances why compliance with the standard is unreasonable or unnecessary.

Findings

Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. Upholding a SEPP 1 objection is a precondition, which must be satisfied before the proposed development can be approved on a consideration of the merits.
His Honour states that the Court must be satisfied of the following three matters: 38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1). The requirement in clause 7 of SEPP 1 that the consent authority be satisfied that the objection is well-founded, places an onus on the applicant making the objection to so satisfy the consent authority: see North Sydney Municipal Council v Parlby, unreported, LEC No. 10613 of 1985, 13 November 1986, Stein J, p. 8. 39 Secondly, the Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). This matter is cumulative with the first matter (it is prefaced by the words in clause 7 of SEPP 1 "and is also"). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: "(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and coordination of the orderly and economic use and development of land." 40 Thirdly, the Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94 at 100 and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262 at 291. The matters in clause 8(a) and (b) are: "(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument".
At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states: 42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard… 43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served). Site coverage (cl 25I(6))
The planners agree on the underlying objective of the site coverage standard in cl 25I(6) of the KPSO are in cl 25I(1) which relevantly include: (a) the desirability to provide a high proportion of deep soil landscape to the site area, …… (d) the environmental features that are characteristic of the zone in which the site is situated by requiring sufficient space on-site for effective landscaping, (e) the desirability of adequate landscaping so that the built form does not dominate the landscape, ……
The area of deep soil landscape complies with the requirement in cl 25I(2) however, its distribution on the site, in particular, the deep soil landscaping on the Werona Avenue frontage in front the southern building, does not achieve objectives (d) and (e). The proposal requires the removal of trees along the Werona Avenue frontage and there will be three small replacement trees (Waterhousia 'sweeper') with understorey planting. The proposed minimum 3.5m setback is not adequate to provide space between the landscaping and the building to achieve a "landscape setting" that is characteristic of the zone in which it is situated. The setback does not comply with even the minimum 6m requirement of C-1(c) of s 4.3 of the DCP, which applies to development in the 2(d3) zone or meet objective O-1 which provides: Buildings set behind gardens dominated by canopy trees which screen the buildings, soften the urban form and maintain the garden character of Ku-ring-gai.
The urban design experts agree that despite the site width a setback of 6m to Werona Avenue could be provided. The proposed 3.5m setback does not provide "sufficient space … for effective landscaping…so that the built form does not dominate the landscape". I do not accept Mr Roberson's SC submission that the corner location or landscape corridor along the railway achieves appropriate separation and landscape character such that a reduced setback is justified.
A development which complied with the site coverage control would enable a greater depth of setback to be provided along the Werona Avenue frontage to provide a landscape setting for the southern building. It has not been demonstrated that the proposal achieves the objectives of the site coverage standard in a manner that is equal to or better than a development which complies with the standard or that a development that complied with the development standard would be unreasonable or unnecessary (see Wehbe at [70] and [76]).
Non-compliance with the site coverage standard in cl 25I(6) is not unreasonable or unnecessary and the SEPP 1 objection is not well founded. The application must therefore fail and consent cannot be granted.

Zone interface setbacks (cl 25L(2))

Mr Robertson's SC submits that the purpose cl 25L to provide a transition in scale between zones "implies a sliding scale" where buildings increase in height from the adjoining zone and into the 2(d3) zone ie from two to three to four storeys. He submits that the standard cannot apply to an "infill" site as there is nothing to transition to. As I understand his submission, because the site adjoins a road and a railway line the development is not able to transition to other development in the 2(d3) zone and therefore the standard has little purpose for the site. He submits that the standard intends that there be a difference between the higher density and lower density land but that the development is not of a "sufficiently greater scale not to represent a transition", particularly as that part of the development that is within the 9m is predominantly terraces, not the building. Consequently, the objective is met.
I do not accept this submission. The transition in scale sought by the standard is between different zones, at the zone interface, not for developments within the 2(d3) zone. It seeks to address abrupt changes in scale between one to two storey dwellings in low density residential zones and three or more storey residential flat buildings in the 2(d3) zone. It does this by specifying that the third and fourth storeys of a development on land in the 2(d3) zone must be setback at least 9m from the boundary of land in an adjoining zone. It does not require such a setback from roads or from other developments within the 2(d3) zone.
The development is not four storeys, which is permissible under cl 25I(5), but of itself this does not justify the reduced setback of the third storey. While part of the breach of the standard results from the terraces, the experts agree that the setback should be measured in accordance with the definition of "building line or setback" in the Standard Instrument, which provides that the setback be measured from the boundary to "a building wall, or the outside face of any balcony deck or the like….whichever distance is the shortest". The terraces are substantial structures that add to the height and bulk of the building and are orientated towards 33 Greengate Road and 24 Powell Street and result in greater bulk and overlooking than would result from a development which complied with the standard. It has not been demonstrated that the proposal achieves the objectives of the standard in a manner that is equal to or better than a development which complies with the standard or that a development that complied with the development standard would be unreasonable or unnecessary (see Wehbe at [70] and [76]).
For the reasons, which I discuss below, the third storey of the development does not meet the 15m setback required under the DCP to achieve an acceptable relationship with the adjoining heritage items. A lesser setback than the 9m required under cl 25L(2) further exacerbates this relationship.
The setback of the third storey does not achieve the transition of scale sought by the standard and the SEPP 1 objection does not adequately justify why compliance with the standard is unreasonable or unnecessary and it is not well founded. The application must therefore fail and consent cannot be granted.
As upholding the SEPP 1 objections is a precondition, which must be satisfied before the proposed development can be approved, it is not necessary for me to further consider the application on its merits. However, for completeness, I will address the other key issues in dispute. Impact on the significance of the heritage conservation area and heritage items
The key issue in dispute between the Mr Staas and Mr Dignam was whether the existing houses contribute to the significance of the HCA and whether their demolition would have an adverse impact. They also disagreed on whether the proposed development would adversely impact on the significance of the HCA. Mr Staas prepared a Statement of Heritage Impact (SHI). He and Mr Dignam prepared statements of evidence and a joint report which included a review of the proposal against the principles in Helou v Strathfield Municipal Council [2006] NSWLEC 66 at [43]-[46] for the demolition of contributory item in conservation area. Heritage significance of the heritage conservation area
Although there is no formally adopted statement of significance for the HCA, Mr Staas and Mr Dignam referred to the Heritage Data Form (the Form) that was prepared in 2013 based on information in the Ku-ring-gai South Conservation Area Review prepared by Architectural Projects Pty Ltd in 2010 (AP Report) and earlier reports, including Ku-ring-gai Urban Conservation Areas Study Stages 2 and 2(a) prepared by Godden Mackay Logan in 2002 (GML Report). The AP Report reviewed the earlier reports and the conservation areas surveyed by the National Trust in 1995, including Killara Urban Conservation Area 9 (UCA 9). It formed the basis for the inclusion of heritage conservation areas in the Heritage LEP.
Mr Staas relies on the Statement of Significance in the Form which states: The Greengate Estate HCA has medium historic significance as the 70 acres within the Foster grant whose boundaries are evident through the following streets; Pacific Highway, Greengate Road, Bruce Avenue and Powell Street. The HCA has high historic significance as the 1906 subdivision evident in Greengate Road and the hotel site. The subdivision reflects improved transport connections due to the construction of the North Shore Rail line. The HCA has historic significance as Interwar overlay of the subdivision of Abbotsholme Estate (1925) evident in lots north of Greengate Road. The subdivision reflects improved transport connections due to the electrification of the railway in 1927 and the construction of the Sydney Harbour Bridge.
Whereas, Mr Dignam relies on the Statement of Significance and the other information in the Form, including the Assessment of Significance under the State Heritage Register Criteria (SHR Criteria) which include Historical significance SHR criteria (a) as stated above, as well as: Historical association significance SHR criteria (b) Historic association with the following important local identities: James George Edwards, the acknowledged "father of Killara" and William Foster as the original Crown grantees. Aesthetic significance SHR criteria (c) Medium aesthetic significance as a reasonably / highly intact and consistent Interwar (1918-1958) development. High aesthetic significance for the high proportion of quality houses. Representativeness SHR criteria (g) Representative significance as a highly intact area developed in the late twentieth century /Interwar and post-war period. Integrity High level of integrity of the building stock
The experts agree that the reference to "late twentieth century" in Representativeness should be to "late nineteenth and early twentieth century". Under cross examination, the experts generally agreed that the HCA has medium historical significance that includes the overlay of inter war development on the federation subdivision. Contribution of 22 Powell Street and 39 Werona Avenue to the Heritage Conservation Area
The experts disagree on the contribution that the existing buildings make and consequently the impact that the demolition would have on the heritage significance of the area.
Mr Staas and Mr Dignam agreed that the buildings to be demolished date from the key period of the HCA, which is the early twentieth century and inter war period and that both buildings, while dilapidated, are not structurally unsafe. 22 Powell Street is a typical federation house, which has had later additions and the removal of some original detailing, particularly the enclosure of the verandah. The experts disagreed on the feasibility of reversing the modifications to 22 Powell Street. In Mr Dignam's opinion, the modifications are easily reversible and could be done as part of reasonable upgrading of the house. Whereas, Mr Staas considers that it would require significant work. Furthermore, he considered that the screening of the house by landscaping reduces its contribution to the HCA. 39 Werona Avenue is an inter war building, which both experts agree is intact, however, Mr Staas considers that this part of Werona Avenue is not an important part of the HCA and that the house, while distinctive, is not prominent and is "visually isolated" from the HCA. Impact of the demolition of 22 Powell Street and 39 Werona Avenue on the heritage significance of the heritage conservation area
Consequently, the experts held different opinions on the demolition of the houses. As Mr Staas considered the houses made a "minimal" contribution to the HCA their demolition would not adversely affect its significance. Whereas, Mr Dignam considered that the houses contributed to the HCA and therefore their demolition would have an adverse impact. In particular, 39 Werona Avenue, which in his opinion, is worthy of consideration for listing as a heritage item due to its aesthetic and rarity value as an example of the work of Douglas Agnew, a prominent local architect. Impact of the proposed development on the heritage significance of the heritage conservation area
The experts also held different opinions on the impact of the proposed development on the significance of the HCA. Mr Staas considers that it would appear as two large residences rather than a single bulky residential flat building and that the contemporary design and use of flat roofs is not uncharacteristic of the area. Although, he acknowledged that the proposal would be contrary to the desired future character sought by the Draft LEP. Mr Dignam accepts that the overall height of the proposed development is similar to adjoining buildings. However, it is three storeys with a flat roof, that is inconsistent with the existing and desired future character of the area, which is predominantly one and two storey buildings with high pitched roofs of various designs. Impact of the proposed development on heritage items in the vicinity
Mr Staas and Mr Dignam disagree on whether the proposal provides adequate separation from the adjoining heritage items at 33 Greengate Road and 24 Powell Street to conserve their setting and not impact on their significance. Mr Staas acknowledged that the setbacks did not comply with the requirements of the DCP but did not consider that the distance should be measured from the cabana at 33 Greengate Road as it is a minor structure that is not original or part of the significance of the item. Similarly, the porte cochere and garage/studio are 24 Powell Street are minor structures. In his opinion, the setbacks provide adequate physical and visual separation between the houses which are the heritage items and the proposal. This separation is similar to that of the existing dwellings on the site and the adjoining heritage items. The relationship of the proposal with 24 Powell Street is also similar to that of other development within the HCA where two storey houses with tall roofs are built on narrow lots with little separation. He considered the setbacks, combined with the existing and proposed landscaping, would ensure that the development does not dominate the heritage items.
Mr Dignam considered that the setback should be measured from "any building that forms part of the heritage item" in accordance with the definition of "heritage building" and the design controls in s 3.5 of the DCP. In his opinion, the proposal does not comply with the numerical controls or meet the objectives of the controls as the physical separation of the development is not sufficient to reduce the visual impacts on the setting of the heritage items. The development, particularly the third storey, will "visually dominate" 33 Greengate Avenue and 24 Powell because although it is in the form of a recessed third storey, it still appears as a storey and it does not reduce the bulk to the extent that would be achieved by a pitched roof, which is the characteristic form of roof in the area. Findings
Mr Robertson SC, for the applicant, and Mr Staunton, for the council, made competing submissions about the framework under which the application should be assessed. In Mr Robertson's submission, the 2(d3) zoning of the site permits residential flat buildings, which envisages an increased density, and the zoning should prevail over other considerations, such as heritage. Furthermore, he submits that the term "contributory item" does not exist in the planning controls and consequently the principles in Helou are not a relevant consideration. He accepts that the considerations in cl 61D are relevant but submits that the houses on the site are not of heritage significance and consequently their removal will not adversely impact on the significance of the HCA. Similarly, the bulk and visual dominance of the development is what is envisaged by the planning controls for a residential flat building in the 2(d3) zone and therefore it achieves an appropriate relationship with the adjoining heritage items and the conservation area.
Mr Staunton, for the council, submits that the permissibility of residential flat buildings is not a warrant to demolish the existing buildings on the site. The land use table in cl 23 of the KPSO states that the permissibility of residential flat buildings in the 2(d3) zone is "subject to the other provisions of this Ordinance". The other provisions include the heritage considerations in cl 61D. Even though the term "contributory item" is not used in the Heritage LEP, the existing buildings make a positive contribution to the HCA and the principles in Helou are relevant. The existing houses are from the key period that forms part of the significance of the HCA and have a reasonable degree of integrity. Consequently, their demolition will adversely affect the significance of the HCA. The bulk and visual dominance of the proposed development will also impact on the heritage significance of the HCA and the adjoining heritage items.
I accept Mr Staunton's submission. Residential flat buildings are included in the range of uses that are permissible in the 2(d3) zone. It is not an unreasonable assumption that development for the use of the site for a purpose for which it is zoned, in some form, will be permitted provided it is consistent with the zoning and results in acceptable environmental impacts (see BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [117] and [118]).
The environmental impacts include a consideration of heritage impacts as required by cl 61D. If this provision was not meant to apply to the 2(d3) zoning or if the site was not meant to be part of the HCA it could have been excluded when the KPSO was amended by the Heritage LEP in 2013 to add heritage conservation areas. The area to the west of the railway line, which was originally identified as being part of the HCA, was not included in the Heritage LEP, presumably because of the extent of four to five storey development that had recently occurred in this area. Similarly, other lots were excluded from the HCA, presumably because they did not contribute to the significance of the HCA.
Under cl 61D(1),the objectives for heritage conservation are relevantly: (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Ku-ring-gai, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, …...
Clause 61D(4) provides: (4) Effect of proposed development on heritage significance The Council must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned……
"Heritage significance " is defined under the KPSO to mean: "Heritage significance" means historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.
Clause 61D(4) involves firstly an identification of the heritage significance of the HCA and secondly a consideration of the effect of the proposed development on that significance.
The Form identifies the heritage significance of the HCA, which principally relates to the historical development of the area linked to the development and electrification of the railway and the construction of the Harbour Bridge. The significance is not limited to the historic subdivision of land but also to the development of that land, which has aesthetic and representative significance and a high degree of integrity. The key period of development which demonstrates the history of the area is the late nineteenth and early twentieth century and interwar and post war periods. The aesthetic significance is not limited to the "high proportion of quality houses" but also to the reasonably/highly intact and consistent interwar (1918-1958) development".
While the Heritage LEP and the DCP do not identify or use the term "contributory items" this is not unusual and there is no such definition in the Standard Instrument. However, it is a term that is commonly used to identify a building that makes a positive contribution to the significance of a heritage conservation area. I do not accept Mr Robertson's submission that the principles in Helou are not relevant. Moore SC in Helou states: 44 A contributory item in a conservation area is a building that is not individually listed as a heritage item, but by virtue of age, scale, materials, details, design style or intactness is consistent with the conservation area, and therefore reinforces its heritage significance.
Similarly the AP Report states: The word contributory when used in relation to potential conservation areas refers to the contribution that the property makes to the overall heritage values of the area. The contribution mostly relates to the historic and aesthetic values, but may in some circumstances also relate to technical and or social values….. Properties identified as contributory are from the key period and have a reasonable degree of integrity
I accept Mr Dignam's evidence that the houses at 22 Powell Street and 39 Werona Avenue "contribute" to the significance of the HCA. They both date from the key period, their scale, being one and two storeys, detailing, style and intactness are consistent with and demonstrate the history of the HCA and therefore reinforce its heritage significance. This contribution is not diminished because 22 Powell Street is screened from view by a hedge, if this were the case any building, no matter how significant, could be demolished if it could not be seen from the HCA, which is not the case. While 22 Powell Street has been altered its form remains recognisable and the alterations such as filling the verandah can readily be reversed. Similarly, 39 Werona Avenue is within the HCA and although it is on the crest of a hill, on a busy street and faces the railway line it can be seen together with 22 Powell Street from vantage points such as the opposite corner of Powell Street and Werona Road and contributes to the HCA. Furthermore, 39 Werona was a later subdivision of 22 Powell Street, which demonstrates the overlay of interwar development on Federation subdivision.
Demolition of these houses will remove part of the fabric of the HCA and impact on its setting and views. I accept Mr Staunton's submission that conserving the heritage significance of the HCA is dependent on retaining building that contribute because the incremental loss of these buildings diminish both the historic and aesthetic significance and the integrity of the HCA. Each individual building in isolation is not necessarily significant but it is the group as a whole, together with the heritage items, that has significance.
The setbacks of the lower levels and the overall height of the development are similar to those of the existing buildings on the site and to other buildings in the HCA. The amendments to the proposed development such as breaking it into two buildings and the reduction in the number of storeys and FSR below that which is permitted under the planning controls assist in mitigating the impact of the development on the HCA and the adjoining heritage items. However, I accept the evidence of Mr Dignam and the submissions of Mr Staunton that the development will have and an adverse effect on the heritage significance of the HCA and the heritage items.
The character of the HCA is predominantly one to storeys detached dwellings with a pitched roof and consequently their perceived height and bulk is determined by the number of storeys rather than the overall height of the roof ridge. While the proposal is similar in overall height, it is three storeys with greater site coverage and footprint than the existing buildings on the site. Its built form will result in a bulk and building typology that is not characteristic of the HCA.
In particular, the setback of the upper level, whether measured from the outbuildings or the houses on 24 Powell Street or 33 Greengate Road does not comply with the numerical controls in C-1 of s 3.5 of the DCP and does not meet the objectives: O-1 New medium density development that respects the heritage significance of the adjoining or nearby heritage items. O-2 New medium density that does not visually dominate a heritage item.
The setback of the third storey is not sufficient for it to be read as a recessive element and landscaping should not be relied upon to ameliorate the bulk of the development. While a pitched roof form is not necessary, the setback would need to be increased for the upper level to be recessive to reduce the overall bulk of the development so that it does not visually dominate the heritage items and respects their heritage significance.
For these reasons, the demolition of 22 Powell Street and 39 Werona Avenue and the proposed development will have an adverse effect on the significance of the HCA and the adjoining heritage items which is not outweighed by the benefits of the proposal and consequently the objectives in cl 61D(1)(a) and (b) are not met. Consistency with the existing and desired future character
The planners accept there is a conflict between development envisaged under the 2(d3) zoning introduced under LEP 194 in 2004 and the heritage conservation areas introduced under LEP 218 in 2013. They acknowledge that this conflict will be resolved by the draft LEP, which they agree is imminent and certain. They agree the desired future character under the draft LEP seeks to maintain the existing character of the area but disagree on whether the proposal is consistent with the desired future character. Mr Milligan considers the proposal is compatible with the proposed R2 low density zoning in the Draft LEP because of its physical characteristics, including spacial pattern, setbacks and height. Mr Goodwill considers that the building typology and density of the proposal is not compatible with the R2 Zone.
Dr Pollard and Mr Zanardo held different opinions as to whether the proposal would be consistent with the existing and desired future character of the area and met the design principles in SEPP 65, in particular context, scale, built form and density.
Dr Pollard considered that the development should be considered in the context of development on both sides of the railway line. Whereas, Mr Zanardo considered that the railway line forms a division between the five storey context on the western side of the railway line and the 1-2 storey context on the eastern side. The experts agree that to provide an appropriate response to the context the proposal should be screened by landscaping from the critical viewing point at the corner of Werona Avenue and Powell Street but disagree on whether this is achieved.
Dr Pollard held similar opinions to Mr Milligan that the setback of the southern building from Werona Avenue was sufficient to provide trees to screen the building and a landscape setting. Whereas Mr Zanardo held similar opinions to Mr Goodwill that the setback was not adequate, particularly to provide canopy trees, which are part of the landscape character of the area. The landscape experts agreed on the trees that would require removal and on replacement trees that were suitable to be planted within the proposed setback area along Werona Avenue, but Mr Frew conceded that these would not be canopy trees.
Dr Pollard considered the scale of the development would read as two storeys with a setback third storey, which would be compatible with existing development and the landscaping. Whereas, Mr Zanardo considered it would present as three storeys and be of greater scale than other development.
Dr Pollard accepted that the proposal would read as a residential flat building but considered that its reduced height and modelling into two buildings resulted in a built form and density that provided an appropriate transition with the residential flat buildings on the opposite side of the railway line and the low density residential development around the site. Mr Zanardo considered the relevant context is the east of the railway line and that for the above reasons the built form and density are not an appropriate response. Findings
The parties agree that the application must be determined under the current planning control but that the Draft LEP is imminent and certain and should be given weight (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289). However, they disagree on whether the development would be consistent with the objectives of the R2 zone in the Draft LEP.
The relevant objective of the R2 zone is : To provide for the housing needs of the community in a low density environment
Mr Robertson SC submits that the objective of the R2 zone in the Draft LEP is achieved because the design of the development is consistent with the low density character of the area, being two to three storeys, in two separate buildings, with a similar height, footprint and bulk as other buildings in the area.
Mr Staunton submits that the proposed development does not achieve the objectives of the LEP or the R2 zone, principally because it is of a height, scale, density and built form that is antipathetic to a low density environment.
I accept the evidence and submission of council. While residential flat buildings are permissible under the KPSO the design quality of the development must be evaluated under the design principles in SEPP 65 and the objectives of the Draft LEP considered. The area on the eastern side of the railway line is the relevant context within which the development should fit. The railway line forms a divide between two areas that have different characters. These different characters will continue under the different zonings in the draft LEP. The existing and future character of the area on the eastern side of the railway line is 1-2 storey houses with pitched roofs in landscaped settings. The parties agree that the proposal does not have to be the same as development within the area for it to be compatible (see Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191). However, for the reasons which I have discussed above, the proposal is not compatible with the existing context and the desired future character of the area.
The three storey built form is not characteristic and does not achieve an acceptable scale relationship or density within its context, which is a heritage conservation area. The landscape character sought by the planning controls is not achieved principally because the setback to Werona Avenue of the southern building does not provide sufficient space for effective landscaping and the built form will dominate the landscape. In evaluating the design quality of the proposal against the principles in SEPP 65 of context, scale, built form and density, the proposal does not achieve good design to the extent that it would warrant approval.

Orders 1. The appeal is dismissed. 2. The development application (DA0404/13) for a residential flat building at 22 Powell Street and 39 Werona Avenue, Killara, is refused. 3. The exhibits, except Exhibit 1, may be returned. Annelise Tuor 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: 02 April 2015

(1999) 110 LGERA 262

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Judgment (11 paragraphs)

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Cases Cited (6)