Fullerton House Pty Ltd v Woollahra Municipal Council

Fullerton House Pty Ltd v Woollahra Municipal Council - [2020] NSWLEC 1653 - NSWLEC 2020 case summary — Zoe

[8]

Evidence

Expert evidence was given by town planning experts: G Karavanas (for the Applicant) and D Waghorn (for the Council). Their expert report was tendered into evidence as Ex 5.
The experts analysed the proposal against planning controls, other than those related to heritage conservation (concerns considered by heritage experts and addressed below). The position of the planning experts can be understood from the three paragraphs below (Ex 5, par 1.3-1.4, 1.6): 1.3. The proposal complies with the floor space ratio (FSR) (as per Council's expert's interpretation) and for most part complies with the height standard (with the exception of a small portion of the roof that at its highest point is 371mm above the height standard). The proposal also complies with the front, side and rear setbacks. Further, the proposal complies with the landscaped area controls of Council, including total deep soil landscaped area as well as deep soil landscaped area in the front and rear yards. 1.4. Given the proposal's compliance with the FSR, height (for most part), setbacks and landscaped area, it comprises an envelope that is anticipated by the Council's controls for the site. The compliant landscaped areas provide the opportunity for well landscaped areas that soften and complement the development consistent with Council's controls and the surrounding area. … 1.6. Therefore, it is our opinion that the external envelope and contribution to the landscaped character are consistent with the desired future character of the area. That is, if the site is not within the Kent Road Heritage Conservation Area, the form and scale of the building and its surrounds are anticipated by the controls. The contribution of the existing building to the Kent Road Heritage Conservation Area will be considered by the Heritage Experts.
The planning experts together concluded that, other than in regard to heritage conservation concerns, "the proposal is consistent with the desired future character of the Kent Road Conservation Area and Rose Bay Precinct" Ex 5, par 1.7).

[12]

Policy

Clause 5.10 of the LEP is concerned with heritage conservation. Subclause (1) outlines the clause objectives, which are (relevantly) as follows: (a) to conserve the environmental heritage of the Woollahra, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views …
Subclause 5.10(4) is concerned with the effects of a proposed development on heritage significance, and provides (relevantly) as follows: The consent authority 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…
I reproduce the Kent Road HCA "statement of significance" and "desired future character" description as per WDCP (B2.11, p23-24) below: "Statement of significance Kent Road is a long cul-de-sac located off the southern side of New South Head Road opposite the reclaimed land, which forms Lyne Park. It is an important part of the extended setting of the Royal Sydney Golf Club, with the road and its related subdivision creating the western edge of the golf links. The golf clubhouse is located at the lower northern end where it is the dominant element. The Kent Road HCA represents a distinct, isolated pocket of residential development in the Rose Bay area, arising directly from the historical development and financial activities of the Royal Sydney Golf Club. The road is dominated at its lower end by the impressive mass and detail of the historically, aesthetically and socially significant 1920s Clubhouse building and its immediate setting. The other buildings in the street fall into three broad categories: substantial late Federation era Arts & Crafts style houses on the eastern side of the road overlooking the golf links which were well established before the 1919 "Knoll" subdivision sale and are now largely modified; Inter-War flats and houses built between 1920 and the late 1930s which were a direct result of rapid residential expansion of Rose Bay following the First World War; and infill developments which have replaced earlier buildings or vacant sites in the late 20th century. Amongst these buildings are a number of excellent representative and rare examples of Inter-War residential development by prominent architects which are of local significance within the Woollahra Municipality. Kent Road itself is wide with street trees of varying species and maturity, along with wide verges and footpaths. It rises steeply to the 'knoll' and contains a double bend following the contours, which adds to the character of the streetscape, creating a series of enclosed vistas. The road terminates in the cul-de-sac with views over the Golf links and beyond up to Dover Heights. The area also has significant aesthetic qualities arising from the overall form and layout of the subdivision, the presence of prominent mature gardens and the character created by a variety of substantial street tree plantations. Desired future character To conserve the streetscape characteristics that gives the Kent Road HCA its special sense of identity. To ensure that individual heritage items are retained and conserved, as well as their streetscape context and curtilage."
The background expert study informing the content of Kent Road HCA statement of significance and related WDCP comes under the following name: "Woollahra Council Potential Heritage Conservation Area Study - Kent Road Area Rose Bay prepared by NBRS&P Heritage September, 2002" (Ex 1, behind Tab 12, referred to forthwith as the 'NBRS&P Study')

[13]

Evidence on contributory item considerations

Ms Scardamaglia believes the existing dwelling fits the definition of contributory building under WDCP due to: "…its materials, detailing, finishes and form, its being from a significant historical period (Inter-War) and being highly intact. Even if the front verandah has been infilled, this change does not affect the Inter-War character of the dwelling and its identification as such. There have been no changes to the dwelling's building envelope and form and minimum internal changes".
Ms Scardamaglia notes the specific reference to "Inter-War" houses in the Kent Road HCA statement of significance. This would be in regard to the third paragraph (see [30]). Reference is also made to chapter B2 .1 of WDCP which Ms Scardamaglia indicates provides that: "all other buildings, except the heritage items and intrusive buildings are considered contributory items".
Ms Scardamaglia also believes the NBRS&P Study "reinforces" the position that the existing dwelling is contributory to the streetscape by way of the textual reference in the individual survey sheet applying to 30 Kent Road, which formed part of the study (Chapter 15).
Mr Davies says the existing dwelling is of low contributory significance. In referencing the NBRS&P Study, and individual surveys of properties, Mr Davies notes that there is no explanation of the existing dwelling's ranking as a contributory item in the survey material (ibid, p37). He compares the descriptive content for the existing dwelling to other contributory items which generally included descriptive text in support (eg a small residential flat building at 24 Kent Road (ibid, p34) is noted as "contributory to the dominant streetscape character").
Mr Davies believes the existing dwelling is of low individual significance because it brings low representative comparative value aesthetically and has low visibility in the street (being set relatively low) except for the terra cotta roof. He says "there is very little to nothing in the DCP which recognises the objectives or controls for these buildings" (Ex 4, p6).

[15]

Consideration

Having regard to WDCP's statement of significance for the Kent Road HCA, I generally agree with Mr Davies that heritage conservation emphasis goes to: (1) conserving the Kent Road streetscape character (which gives it "its special sense of identity"), (2) individually valued buildings (as listed), (3) the Federation Arts and Crafts buildings (as a clustering) and then (4) maintaining the sense of the overall identified precinct.
While the Inter-War dwellings are referenced, the major emphasis in WDCP in regard to an identifiable building grouping, including how that emphasis is drawn out through "controls", is clearly towards the Federation Arts and Crafts buildings. I see the "three broad categories" referenced in the statement of significance as not a justification for heritage significance of Inter-War buildings of themselves (see [33]). The three broad categories are simply a grouping of the building types within the street. There is no suggestion to me in that particular part of the statement of significance that, for example, the first two building categories have heritage significance and the third category does not.
I see that it is important that the Kent Road HCA WDCP controls have little to say in regard to Inter-War buildings. The most relevant objectives are O1 and O2 which are reproduced below (see Figure 3). I don't believe the proposed development would be at odds with the corresponding "controls" (C1 and C2). That is to say, the control in regard to the conservation of buildings and their settings, makes direct reference to retention of Federation Arts and Crafts buildings, only. Figure 3 - Excerpt from Woollahra DCP Chapter B2
As noted above, the Kent Road HCA statement of significance, having particular regard to the desired future character points, is concerned with conserving streetscape characteristics that give Kent Road its "special sense of identity". On this point, I agree with Mr Davies that the existing dwelling is making little contribution to Kent Street streetscape identity at present. The reasons for this include its physically low setting, and the front verandah infills, which are reasonably evident in the street. I note that these infills are capable of being returned to original form. However, the general form of the building and terra cotta roof is insufficient for me to consider that the existing dwelling makes a positive impact and contribution to Kent Road's streetscape character.

[16]

Finding - contribution of existing dwelling and the acceptability of demolition

I turn to the Court's Planning Principle in Helou, referenced above, and selectively quoted below: "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. 45 The demolition of a building which contributes to a conservation area will impact on the area's heritage significance even if its replacement building "fits" into the conservation area. Although the replacement building may be a satisfactory streetscape or urban design outcome, this does not address heritage impacts as the original heritage element has been removed. Despite this, it is open to the consent authority still to permit the demolition of a contributory element, for example, if the replacement has other planning benefits that the original does not. 46 The following questions should be addressed in assessing whether the demolition should be permitted: 1. What is the heritage significance of the conservation area? 2. What contribution does the individual building make to the significance of the conservation area? … 3. Is the building structurally unsafe? … 4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition? … 5. Are these costs so high that they impose an unacceptable burden on the owner of the building? … 6. Is the replacement of such quality that it will fit into the conservation area? If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved."
Paragraphs 44 and 45 in Helou are instructive of themselves. Par 44 synthesises the test at cl 5.10(4) of WLEP that is, whether a building, in this case one that might be removed, might at present "reinforce" the heritage significance of the HCA.
Par 45, among other things, in my interpretation draws attention to the fact that while heritage conservation is a most important component part of the NSW planning system, it does sometimes compete with other environmental planning objectives. In this instance, the other environmental planning objective which could be thought of as competing with heritage conservation objectives would be primarily that of "(providing) for the housing needs of the community within a medium density residential environment", as per the first objective of the R3 Medium Density zone.
In regard to Question 1 in Helou, the heritage significance of the Kent Road HCA is not in dispute.
In regard to Helou's Question 2, and the first of the "topics" considered by the heritage experts in this matter [26], it is my conclusion that the existing residence makes a quite limited contribution to the HCA mindful of heritage conservation objectives. The policy aspirations in terms of desired future character would generally not be prejudiced by demolition. Here, I agree with Mr Davies that (Ex 4, p7): "…if the building were not retained then the acknowledged character of Kent Road would be retained through the subdivision, street planting and significant Arts and Crafts houses and the (Sydney) Golf Club."
In turn I do not believe there is anything but a passive "reinforcement" of the heritage significance of the HCA contributed by the existing dwelling. Here that would be in regard to either: (a) conserving the Kent Road streetscape character (which gives it "its special sense of identity"), or (b) maintaining the sense of the overall identified precinct (see [42]).
I also believe there is some other planning benefit associated with the replacement of the existing residence with the proposed four units, which I have indicated aligns with the first R3 zone objective. All other things being equal, this objective in regard to housing provision can have particular resonance in settings such as this, where there is good accessibility to services and infrastructure.
Provided I find positively in regard to Question 6 in Helou, which it will be seen below that I do, there is no need for me to consider the other Helou questions in this matter before me.

[17]

Evidence on whether replacement building will adversely impact HCA

The parties agree that both west and east elevations of the proposed building would be visible from the public domain (east elevation from Kent Road and west elevation from Woollahra Park).
Council is concerned that "the replacement building (would) adversely impact the character of the HCA". The proposed building is seen to be particularly contrary to Objectives O1 of chapter B1.9.2 and O2, O6 and O7 and C11 of chapter B2.11 of WDCP. The central concern after plan amendments (which seem to address certain earlier contentions and I consider below) is what Council sees as excessive use of glazing, visible in the public domain (from Woollahra Park and Kent Road). Ms Scardamaglia's evidence is that (Ex 4, p7): "Both east and west elevations employ excessive glazed areas with horizontal proportions that appear as an anomaly in the HCA context. Dominancy should be given to solid elements rather than glazed areas through vertically proportioned openings. The excessive use of glazed areas adversely affects the streetscape character. I believe that the replacement building, while having some DCP non-compliances, has capability to improve its design and enhance its suitability to the conservation area, but the real issue of this proposal is the loss of a contributory item providing evidence of the Inter-War development of Kent Road that has been recognised by heritage listing this heritage conservation area."
In his individual expert report at Ex J, Mr Davies referenced the findings of the proposal Heritage Impact Statement (prepared by his firm): "The Heritage Impact Statement for No. 30 Kent Road prepared by Urbis, July 2018, concludes that: "The proposed works are supported from a heritage perspective as: • The proposed scale of the development is compatible with the surrounding buildings. The new development would be three storeys in height. However, the sloping topography of the site conceals the lower ground floor from public view. The proposed development would present as a two-storey building when viewed from Kent Road. • The form of the proposed building presents a solid to void ratio consistent with the existing built form of the locality. Furthermore, the building would feature architectural elements compatible character of Kent Road. • Brick and render have been identified as the dominant finishes in the vicinity of the site. As the proposed development would have a painted render, and brick finish, it would therefore be compatible with the established character. • The proposed setback of the new development is in line with that of the adjacent heritage listed building at 32 Kent Road and that of the submitted DA at 28 Kent Road. • The proposed landscaping works would have a positive impact on the site and the character of the HCA. • High-quality finishes are proposed, that would ensure the building would make a positive contribution to the character of the Kent Road HCA.""
In the joint report (Ex 4, p7) and oral evidence, Mr Davies pointed to the further design revision undertaken to the proposed building, including changes to roof material (terracotta tiles) and provision at the first floor of sliding screens ("in a patinated brass finish"), addressing "solid to void" concerns.

[19]

Finding

Having considered the expert evidence and reviewed the plans (encompassing amendments in response to prior Council concerns), I am satisfied that the proposed development provides a scale and form which is compatible with the Kent Road streetscape. The proposal complies with relevant controls with the exception of a relatively minor height contravention which requires further consideration below.
I agree with Mr Davies that the massing, in company with architectural form and materials (including roofing, screening to glazing elements, reused material, as well as landscaping would mean the proposal can sit as a positive feature in the streetscape without visually dominating, an important test in terms of streetscape heritage conservation. This also applies to the west, with the view from the parklands. I note that the applicant has removed intended spas in the front setbacks to Units 2 and 3 (now embodied in proposed conditions) which would have brought potential concerns in regard to ambitions for dwellings to be seen as set within "highly visible gardens".
While the exchange between the experts relates principally to the potential impact of the proposal on the HCA, as required under cl 5.10(4) of WLEP, I need to give attention to the potential effect of the proposed development on the heritage significance of the adjacent heritage item. To expand, 32 Kent Road is listed as of local significance in WLEP in regard to the existing "house, interiors and grounds". My conclusions in regard to this potential effect are that they are not unreasonable. Mindful of the setting of 32 Kent Road (in particular the house and grounds, including existing landscaping) and the siting, architectural and landscape treatment proposed with the subject application (including building positioning, height, roof form and materials), it is my view that no unreasonable adverse impact on the heritage significance of 32 Kent Road would result.
The proposed building seems to exhibit higher architectural design qualities and has a capacity to contribute positively to the streetscape setting in some alignment with other, more historical, architect-designed buildings in the street.
I note that in coming to my position in regard to the effect of the proposed development on the heritage significance of both the Kent Road HCA and the heritage item at 32 Kent Road, I have read and given consideration to specialist submissions objecting to the proposal on heritage impact grounds on behalf of the owners of 32 Kent Road. I am of the view that the submissions do not raise significant further issues. That is to say that the analysis above adequately covers relevant heritage issues raised in objector submissions.

[22]

Compliance unreasonable or unnecessary in the circumstances of the case

The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of WLEP 2012). The objectives of WLEP's height of buildings clause are: (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.
The written request describes how the proposed development's building height is compliant other than for an area above the existing basement excavation. The written request goes on to describe how the height of the building is generally consistent with nearby buildings through showing comparisons of nearby buildings in the streetscape. Mindful of the findings of Preston CJ in Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 [57], I accept the written request's position that the development is consistent with Objective (a).
The first part of Objective (b) is, as described by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [64] ('Wehbe'), "descriptive of the result achieved by the clause itself". In this case it might extend to relate to WLEP's development standards relating to FSR also. That is to say, the "transition in scale" sought by Objective (b) is in part founded on the spatially varying development standards as prescribed in WLEP's building height and FSR maps. The written request has established that the proposed building height is consistent with the desired future character of the neighbourhood (see above). The written request also describes how the proposal complies with the FSR development standard. The written request has demonstrated that the clause objective in relation to scale transition is achieved notwithstanding the contravention.
The second part of objective (b), as well as objectives (c) to (e), are concerned with minimising amenity impacts. I am satisfied with the written request's advice that the proposed development would minimise loss of solar access to existing buildings and open space because of the written request's reference to shadow diagrams accompanying the application which demonstrate this. More broadly I accept the written request's advice that the development minimises impacts on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion. This is because of the written request's demonstration that the proposal satisfies the built form controls relating to setbacks, FSR and building height with the exception of the contravening height area (above an area of excavation for basement) of 371mm. It follows for me that such controls are themselves concerned with minimising amenity impacts. Here I also accept the written request's advice that the proposed development would protect the amenity of the public domain by not impacting on public views, confirming my own observations from the site inspection.
The written request adequately demonstrates that the objectives of the development standard have been achieved notwithstanding the contravention. In turn the written request has demonstrated that strict compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

At a glance

Court

Decision date

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Catchwords

Judgment (29 paragraphs)

Parties

Cases Cited (8)