Gelder Architecture v Ku-Ring-Gai Council

Land and Environment Court (NSW)|2010-07-19

CITATION : Gelder Architecture v Ku-Ring-Gai Council [2010] NSWLEC 1184 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Gelder Architecture PARTIES :

RESPONDENT Ku-Ring-Gai Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Local Environmental Plan (Town Centres) 2010

Georges Construction v Ku-ring-gai Council [2008] NSWLEC 1409 Mathers v North Sydney Council [2000] NSWLEC 84 CASES CITED: Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Atkins v Maitland City Council [2010] NSWLEC 36 61 Helou v Strathfield Municipal Council (2006) NSWLEC 66

APPLICANT Mr G Green, Solicitor of Pikes Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A Pickles, Barrister instructed by Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10027 of 2010 Gelder Architecture v Ku-Ring-Gai Council

JUDGMENT 1 Commissioners: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application that proposes the demolition of three dwelling houses and associated outbuildings and the construction of a 5 storey residential flat building above a two level basement car park at 1-5 Yarabah Avenue, Gordon (the site). 2 The development was to initially comprise 33 units with associated parking and landscaped areas. In a subsequent s82A application to the council, the number of units was reduced to 32. On 20 May 2010 the A/Registrar granted leave for the applicant to rely on further amended plans. It is the amended plans that are the subject of these proceedings. The Site and its Locality 3 The site is located on the north western corner of the Pacific Highway and Yarabah Avenue and is an amalgamation of four lots which contain three dwelling houses, all of which have frontage to Yarabah Avenue. The total area of the site is 2767 m2. It has a fall of approximately five metres from the front eastern corner to the rear western corner.

4 The Pacific Highway is a major arterial road whereas Yarabah Avenue is a quiet residential street. Apart from a two storey residential flat building on the southern corner of the highway and Yarabah Avenue, the remainder of the buildings in Yarabah Avenue are one and two storey dwelling houses. 5 Two heritage items adjoin the site, one to the north known as Nos 724-726 Pacific Highway and one to the north-west being No 17 Yarabah Avenue. 6 A five storey residential flat building has been approved by the Court opposite the site at 2 and 2A Yarabah Avenue (Georges Construction v Ku-ring-gai Council [2008] NSWLEC 1409). Relevant Planning Instruments and Zoning History 7 At the time the development application was lodged and both it and the s82 Review determined by the council, the relevant planning controls were Ku-ring-gai Planning Scheme Ordinance (KPSO) and Ku-ring-gai Multi-Unit Housing Development Control Plan No 55 - Railway/Pacific Highway Corridor and St Ives Centre (DCP55). 8 Under the KPSO the site was zoned Residential 2(d3). Residential flat buildings are permitted with consent within the 2(d3) zone. The site was located within the West Gordon Urban Conservation Area pursuant DCP 55. 9 On 17 November 2008, Council placed on exhibition draft Local Environmental Plan (Town Centres) 2008 (draft LEP). The draft LEP proposed to rezone the site to R2 Low Density Residential and include Nos 1-17 and 2-16 Yarabah Avenue within the Yarabah Avenue Heritage Conservation Area (HCA). The two heritage items, which adjoin the site, form the northern boundary at the end of the conservation area. Residential flat buildings are prohibited in the R2 zone. 10 Ku-ring-gai Local Environmental Plan (Town Centres) 2010 (LEP 2010) took effect on 25 May 2010; it rezoned the site R2 and included it within the Yarabah Avenue HCA. The gazetted conservation area was reduced from that exhibited by omitting Nos 2 and 2A Yarabah Avenue (because of the development consent for the residential flat building) and these lots were zoned R4 High Density Residential under LEP 2010 which permits, with consent, residential flat buildings. 11 LEP 2010 contains a savings clause that allows determination of a development application as if the plan had not been made. 12 Ku-ring-gai Development Control Plan (Town Centres) (Town Centres DCP) took effect on 11 June 2010. The Issues 13 The contentions raised by the council included heritage impact, context, scale and built form, safety and security, deep soil landscaping, BASIX compliance and solar access and amenity. The majority of issues were resolved prior to the hearing by way of the submission of amended plans and further amendments which were made during the hearing which reduced the number of units within the building by consolidating units 5, 6, and 7 into two, 2 bedroom units. 14 Those issues that remain are the weight that should be applied to LEP 2010 and the heritage impact of the proposed development. Evidence 15 The Court heard the evidence of five objectors on the site. The owner and co-chairman of the residential flat building opposite the site expressed concerns in relation to the loss of privacy, sunlight and outlook, the visual impact of the proposed building, proximity to the girls' school, loss of amenity and the increase in numbers of units within the vicinity of the property. He was particularly concerned about the cumulative effect of the approval at 2 and 2A and the proposal, which he considered would severely reduce the amenity of his unit. 16 The owner of the heritage item at No 17 Yarabah Avenue was concerned the proposal was contrary to the new LEP. He was also of the view that the building was of excessive bulk and did not provide a proper interface to the adjoining, heritage listed residential area and would dwarf the adjoining heritage item at Nos 724 and 726 Pacific Highway. 17 The owner of the property immediately to the west of the site was concerned about the loss of three dwellings from the conservation area, the overshadowing of her property, impact on breezes, destruction of amenity, the large scale and bulk of the building and how it overlooks her property. 18 The owner of No 9 Yarabah Avenue was also of the view that the development was inconsistent with the recently adopted planning controls, did not provide sufficient accessible visitor parking spaces or adaptable units, would have acoustic issues and was contrary to the heritage character of the street. He also highlighted the current parking problems in Yarabah Avenue associated with the school on the opposite side of the Pacific Highway.

19 The owner of the southern duplex which constitutes part of the Heritage Item at Nos 724-726 Pacific Highway was concerned about the impact of the development on the enjoyment of their property due to the loss of trees and vegetative screening, the overlooking of the yard area, the impact of the development on the heritage item, any lighting that may be proposed and the scale, bulk and proximity of the building. 20 All objectors were concerned about the impact of the development on the character of the Yarabah Avenue HCA and the impact from the loss of three of the dwellings from that conservation area. 21 The Court heard expert evidence from:

For the Council o Mr P Smith, urban design o Mr P Davies, heritage For the applicant o Mr G Boston, town planning o Mr N Dickson, urban design, architecture and town planning o Mr R Staas, heritage 22 Mr Pickles, for the applicant, submits that the approach to determining the appeal is firstly, to assess the application under the saved planning controls, secondly, to assess the application under the new planning controls and thirdly, to determine the weight to be given to LEP 2010 and determine whether the proposal meets its planning intent. We accept that this is the correct approach.

Assessment under Ku-ring-gai Planning Scheme Ordinance and DCP 55 23 Evidence was presented by the planning experts that the development complied with the numerical standards required under this instrument and could be approved. 24 Mr Davies and Mr Staas generally agreed that the development was satisfactory if assessed under the KPSO, given that it envisages the form of development proposed. Mr Davies noted that there was an inherent conflict between the form of development sought by the 2(d3) zoning and the identification of the site within a HCA under in DCP 55, which the new planning controls seek to resolve.

Assessment under Ku-ring-gai Local Environmental Plan (Town Centres) 2010 25 It is necessary to consider whether the proposed development is consistent with the aims and objectives of LEP 2010 and that allowing the development would not detract from those objectives. 26 The aims of that plan are found at cl 1.2(2) and are: (2)The particular aims of this Plan are as follows: (a) to establish a hierarchy of centres for Ku-ring-gai, (b) to facilitate the development of the centres to enhance Ku-ring-gai's economic role and cater to the retail and commercial needs of the local community, (c) to provide a variety of housing choice within and adjacent to the centres, (d) to protect, enhance and manage land having special aesthetic, ecological, social, cultural or conservation values for the benefit of present and future generations. 27 Of these aims, (c) and (d) are relevant. The plan provides a variety of housing choice by way of adopting different residential zones across the area to which the plan applies ranging from low density residential to high density residential. 28 The aims of the Residential R2 zone are: * To provide for the housing needs of the community within a low density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To provide housing that is compatible with the existing environmental character of Ku-ring-gai. 29 Mr Boston considered that the objectives of the zone were met by the proposed development. In his opinion the proposal was low density within its context and compatible with the character of the area as it responded to the residential flat buildings opposite, it was set back from the adjoining heritage building as required by the Town Centres DCP and was only two storeys where it adjoined the conservation area. He was of the view that the future character of the street will not be changed by the development and that the Pacific Highway corridor will never be a low density environment but rather one which contains residential flat buildings. He believed that minor amendments could be made to the bathroom and carparking areas to increase the number of adaptable units from 10-25% and that the overall development was compatible with housing in Ku-ring-gai. 30 LEP 2010 also includes provisions to protect, enhance and manage land having special aesthetic, ecological, social, cultural or conservation values by way of specific provisions that address these matters. Clause 5.10 of LEP 2010 has the following objectives in relation to heritage conservation: (a) to conserve the environmental heritage of Ku-ring-gai, and (b) to conserve the heritage significance of heritage items and heritage conservation areas including associated fabric, settings and views, and (c) to conserve archaeological sites, and (d) to conserve places of Aboriginal heritage significance. 31 Mr Staas and Mr Davies agreed that the proposal would have an acceptable impact on the significance of the adjoining heritage items. In Mr Staas's opinion the setback and staggering of the proposal would improve the view of 724-726 Pacific Highway from along the highway. The experts disagreed on the impact of the proposal on the heritage significance of the Yarabah Avenue HCA, which is identified under LEP 2010. 32 The Yarabah Avenue HCA comprises, at its northern end, the heritage Items at No 17 Yarabah Avenue, a two storey dwelling and Nos 724 and 726 Pacific Highway, a two storey duplex building. The single storey dwellings at Nos 4-16 and 1-15 Yarabah Avenue complete the area. 33 Mr Davies explained the significance of the area and its importance as including the properties along Yarabah Avenue in the original 1921 subdivision with dwellings built in the first uptake of sites. Mr Davies described the conservation area as being "a small tightly defined conservation area that demonstrates the Interwar period of development with a group of largely intact and "typical' residences from the time represents a core area of the heritage of Ku-ring-gai". 34 Mr Staas did not agree with this view and considered the boundary of the conservation area to be flawed as not all of the original 1921 subdivision is included, as the subdivision included sites in Cecil Street and the two heritage items are from an earlier period. He was of the opinion that the dwellings were not intact and had been modified, particularly Nos 4 and 6 and that the approval of the residential flat building at Nos 2 and 2A reduced the significance of the area. 35 Clause 9.6.7 C7 of the Town Centres DCP describes the Yarabah HCA as being:

A curved street coming off the Pacific Highway, turning and descending to the intersection with Bushlands Avenue. Houses on the northern and eastern sides are generally sited above street level, those on the southern and western sides of the street below street level. No footpaths. Concrete kerbing, relatively wide street with mixed street tree planting. Built character: largely intact single storey inter-war California Bungalows including the heritage listed Nebraska. 36 The aesthetic significance of the area is described as "an intact streetscape of a 1920s residential subdivision, interesting for its curving street pattern." 37 Mr Staas is of the view that the proposed residential flat building is an appropriate form of development within this conservation area. He considers that the design of the building with its articulated facades, large setbacks and stepped height is consistent with the objectives of LEP 2010 and provides the appropriate transition between the high density R4 zone and the low density R2 zone. 38 Mr Staas considered that the site is the only one along the Pacific Highway that will not be developed for higher density purposes. He is also of the view that the development is of domestic scale and fits with the desired future character of the area, being consistent with the form of development that will take place opposite and on the southern side of Yarabah Avenue. 39 Mr Davies does not support the proposal when assessed against LEP 2010 and considers that the development should be more of a domestic scale and transitional in nature. While he did not support demolition of the three dwellings, he prepared principles for any replacement building which include that any development on the site should be limited to two storey so as to provide a better transition between both the adjacent heritage items, the conservation area and the R4 zone opposite and further to the north along the Pacific Highway. In his opinion, the proposal did not achieve these principles. He does not consider that the articulation and stepping down the site, referred to by Mr Staas, is sufficient to justify the approval of the development. 40 Both Mr Staas and Mr Dickson considered that the proposal would achieve the principles proposed by Mr Davies despite it being more than two storeys. 41 Both heritage experts agreed that the dwellings at Nos 1-5 Yarabah Avenue did not warrant listing as heritage items. However, they disagreed on whether they were contributory items that warranted retention. In Mr Staas opinion they were altered and there are better examples of inter-war housing within the larger conservation area identified in DCP 55. Whereas Mr Davies considered that they were of a scale, form and character consistent with the Yarabah HCA and their contribution, as part of the conservation area must be considered independent of the wider conservation area. 42 Mr Staas is of the opinion that the demolition of the three dwellings would not adversely impact on the Yarabah Avenue HCA as the approved development at Nos 2 and 2A will change the character of the area and the development of the site will be consistent with that change and with other development along the Pacific Highway.

43 Mr Davies is of the view that the loss of three of the fourteen Interwar dwellings from the Yarabah Avenue HCA would have a significant impact on its significance and would be contrary to the objectives of LEP 2010.

Weight to be given to Ku-ring-gai Local Environmental Plan (Town Centres) 2010 44 The development application was lodged with the Council on 31 March 2009. This was after the exhibition of the draft LEP and prior to the making of LEP 2010 on 25 May 2010. 45 As the development application was lodged prior to the operation of LEP 2010, clause 1.8A (the transitional provision) is applicable and provides as follows: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 46 The parties disagree on the weight to be applied to LEP 2010 given the transitional provisions. Mr Pickles submits that LEP 2010 must be given significant weight, as it is certain due to the fact that it has been made. Mr Green submits that LEP 2010 should not be given determinative weight as this would give the transitional provision no work to do. Further, he submits that the identification of Yarabah HCA within LEP 2010 is flawed. Never the less, he submits that the application has been amended to meet the planning intent of LEP 2010, which both parties agree is the test to be satisfied if weight is to be given to LEP 2010. The parties disagree on whether this is achieved. 47 The Court has already considered the weight to be given to a draft LEP and the effect of the transitional provisions (see Mathers v North Sydney Council [2000] NSWLEC 84, Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279). The Court has adopted a consistent approach in these circumstances and recognises that the provisions of Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (the Act) require it to take into account: the provisions of any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved). 48 In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J summarises the authorities on the weight to be given to a draft LEP, particularly, in the circumstances where it was a draft when an application was lodged and has since been gazetted with a transitional provision. 49 The fact that LEP 2010 has been made ensures that the plan is certain and imminent and accordingly, that plan must be given significant weight in the determination of the application. However, due to the savings provision, the inquiry does not stop there. In Blackmore at [30], Lloyd J states:

Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council [1991] 74 LGRA 185 at 193) . Findings 50 As LEP 2010 is now in force, its provisions must be given significant weight and the key question before the Court is whether the proposed development is consistent with the aims and objectives of LEP 2010, particularly in relation to heritage. 51 The making of LEP 2010 determines the appropriateness of the Yarabah Avenue HCA and the impact of the proposal on the heritage significance of this area is an important consideration in determining whether the proposed development is consistent with the aims of LEP 2010 and the future character that will result over time when development takes place under the provisions of that plan. 52 Mr Pickles referred to Atkins v Maitland City Council [2010] NSWLEC 36 where at [20 and 21] Craig C states:

It is convenient first to address the respondent's submission that cl 13(4) should be read as including a reference to a subdivision consolidating allotments within the meaning of cl 8(2)(e). In making that submission, it sought to refer to an internal report addressing the draft local environmental plan which led to the insertion of subclause (4) into the LEP. It also relied upon an exchange of correspondence between it and Planning NSW (as the Department of Planning was then known) relating to the provision. That evidence was admitted for the purpose of allowing the respondent's legal representative to make the submissions that he did without conceding its relevance to the proper interpretation of the provisions of the LEP. The reports and correspondence upon which reliance was sought to be placed indicated, so it was argued, that the amendment ultimately made in the form of cl 13 (4) did not reflect the purpose intended by the Respondent when it formulated and advertised its draft local environmental plan.

21 I reject the respondent's submissions in this regard. The local environmental plan is the instrument of the Minister, not that of the respondent. The respondent did not suggest that the amendment ultimately made to the LEP by the addition of subclause (4) to cl 13 was not the valid culmination of the statutory process ordained by Part 3 of the EPA Act for the making of a statutory instrument. Further, documents that reflect the aspirations of a council in formulating a local environmental plan and the exchange of correspondence with the Department of Planning in relation to the making of that plan would not ordinarily inform the process of interpretation. 53 It is not the role of the Court to determine whether the conservation area is correct. The plan has been made and is in force and must be given weight when determining the application. 54 It is necessary to determine what the future character of the area will be and in this regard, the Heritage Conservation Area provisions of the Town Centres DCP provide some guidance. These provisions contemplate development that retains the identified historic and aesthetic character of the particular heritage conservation area in which it is situated.

55 The future character of the Yarabah Avenue HCA will remain as single storey dwelling houses and accordingly, the scale and size of the proposed development and its relationship to the future character of the HCA is an important consideration. We accept Mr Davies evidence that the proposal will be antipathetic to that character. 56 We acknowledge that the changes to the proposal have sought to achieve a degree of compatibility with the adjoining heritage items and the conservation area. However, the bulk and scale of the building is large and it presents as a unified structure, which is not compatible with the bulk and scale of development that is, and will be, located within the conservation area. The landscaping proposed does not mitigate the building's bulk and the courtyard and boundary fencing is contrary to the streetscape within Yarabah Avenue. 57 We agree with Mr Davies that any development on the site should be domestic in scale, generally two storeys. The extent of two storey elements within the proposal is not sufficient to provide a transition between the adjoining single storey house and the five storey component of the building, particularly given the topography of the site. The articulation of the proposal is also not sufficient to break up the bulk and length of the building into elements of domestic scale similar to the dwellings in the street. 58 We acknowledge that the proposal will be compatible with the scale of the existing residential flat building on the corner of Yarabah Avenue and the Pacific Highway and with the proposed development at 2 and 2A Yarabah Avenue. However, this is not the character of development for the conservation area that is envisaged by LEP 2010. 59 The proposed development at 2 and 2A will impact on the Yarabah Avenue HCA, however, this was part of the consideration during the preparation of the Draft LEP where this land was excluded from the conservation area and the R2 zoning. The exclusion of 2 and 2A from the conservation area emphasises the impact that a building of similar scale to the proposal would have on the Yarabah Avenue HCA. We note that the submissions of the owners of the site and various options for the boundaries of the Yarabah Avenue HCA and the zoning were also considered during the preparation of the LEP 2010. However, as stated above, the LEP has been made and it is not the role of the Court to question its logic. 60 Helou v Strathfield Municipal Council (2006) NSWLEC 66 establishes a planning principle in relation to the demolition of contributory items in a heritage conservation area. This establishes six tests and a review of those tests confirms that the demolition of the three dwellings on the site would have a significant impact on the character of the Yarabah Avenue HCA. This is because, the three buildings contribute to the conservation area and their removal will adversely affect the heritage significance of the conservation area. No evidence has been provided which indicates that any of the buildings are structurally unsafe and we do not consider that the replacement building is of such quality or of a bulk and scale that it will fit into the conservation area. 61 Mr Pickles and Mr Green agreed during the hearing that DCP 55 applies only to land within the 2(d3) zones under the KPSO, its purpose being to guide multi-unit housing development in that zone. DCP 55 therefore had no statutory force for the wider West Gordon Urban Conservation Area outside the 2(d3) zone. Further, with the making of LEP 2010 and the Town Centres DCP, DCP 55 is repealed. Accordingly, there appears to be no statutory protection for the wider West Gordon Urban Conservation Area. We therefore do not accept Mr Staas evidence that the removal of the three dwellings is acceptable on the basis that the wider conservation area is protected. 62 The proposed development is of a height, bulk and scale, that is not compatible with the character of the Yarabah Avenue HCA and will adversely impact on its heritage significance. Accordingly, we find that the proposal does not satisfy the planning intent of the area as proposed under the provisions of LEP 2010. 63 For these reasons, the application is dismissed.

The Development Application (0160/09) to demolish three existing dwellings and construct a residential flat building, basement car parking and associated landscaping and strata subdivision at 1-5 Yarabah Avenue, Gordon, be refused.

      Annelise Tuor
      Commissioner of the Court

      Sue Morris
      Commissioner of the Court

28/07/2010 - Correct spelling of Mr Staas - Paragraph(s) throughout judgment

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