George v City of Parramatta Council

The site and its context

1. The site comprises two allotments of land, which have a combined area of 920.9m². The site is currently developed with two semi-detached dwellings, which are listed heritage items, and several outbuildings.
2. The site is zoned R4 High Density Residential under the Holroyd Local Environmental Plan.
3. To the east of the items, at 73 Boundary Street, lies a modified early single storey timber cottage. To the east of that cottage, to the west of the items, and the south, there are residential flat buildings built in the second half of the 20th century. To the north, on the opposite side of Boundary Street, there is a mixture of mostly low-scaled dwellings including some single storey historic dwellings.
4. More generally the locality is residential in character and comprises a mix of residential flat buildings and detached and semi-detached dwellings.

Planning Controls:

1. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. In accordance with the requirements of State Environmental Planning Policy 65: Design Quality of Residential Apartment Development (SEPP 65) and as required by the Environmental Planning and Assessment Regulation 2000, a design verification statement is required. No verification was lodged for the amended plans. The Apartment Design Guide (ADG) is applicable.
3. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate is required. No certificate has been submitted for the amended plans.
4. Holroyd Local Environmental Plan 2013 (LEP 2013) applies to the site. Relevant to this appeal LEP 2013 has the following aims (cl 1.2(2)): … (a) to provide a clear framework for sustainable land use and development in Holroyd, (b) to provide for a range of land uses and development in appropriate locations to meet community needs, including housing, education, employment, recreation, infrastructure and services, … (f) to protect the environmental and cultural heritage of Holroyd including: (i) identifying, conserving and promoting cultural heritage as a significant feature of Holroyd's landscape and built form as a key element of its identity, and (ii) effectively managing the natural environment (including remnant bushland and natural watercourses) to ensure its long-term conservation.
5. Pursuant to LEP 2013 the site is zoned Zone R4 High Density. The objectives of the R4 zone are as follows: to provide for the housing needs of the community within a high density residential environment to provide for a variety of housing types within a high density residential environment to enable other land uses that provide facilities or services to meet the day to day needs of residents.
6. The proposed development contains two elements, being the works to the heritage items and the proposed residential flat building. The proposed residential flat building is permissible with consent in Zone R4 under the LEP.
7. The permissibility of the retention of, and the works to, the existing semi-detached dwellings is in dispute between the parties.
8. As the site contains a heritage item, cl. 5.10 Heritage conservation applies to the development. The objectives of cl 5.10 of LEP 2013, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of the Holroyd and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4).
9. The application is made pursuant to sub-cl 5.10(10) of LEP 2013 ("the conservation incentive clause") to overcome the prohibition of the proposal in the R4 zone. There are five pre-conditions that must each be satisfied in order to enliven the discretion, as follows: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.
10. Conservation as a term is not defined in LEP 2013. The Australia ICOMOS Charter for Places of Cultural Significance (the Burra Charter, Exhibit 6) defines conservation as: 'Conservation means all the processes of looking after a place so as to retain its cultural significance.'
11. In addition to the above the relevant sections of LEP 2013 are: Clause 2.7 - Demolition Requires Development Consent Clause 4.3 - Height of Buildings Clause 4.4 - Floor Space Ratio Clause 5.9 - Preservation of Trees or Vegetation Clause 6.2 - Earthworks Clause 6.7 - Storm water Management Dictionary
12. The development is subject to the requirements of Holroyd Development Control Plan 2013 (DCP 2013). The relevant parts of the DCP are: • Part A - General Controls 3. Car Parking 11. Waste Management • Part B - Residential Controls 1. General Residential Controls 1.7 Building and Site sustainability 1.8 Sunlight Access 6. Residential Flat Buildings 6.1 Lot Size and Frontage 6.3 Setbacks and Separation 6.6 Open Space 6.15 Waste Management 7. Controls for Landlocked Sites Part E - Public Participation Part H - Heritage and Conservation Areas 4. Specific controls for development in the vicinity of a heritage item

Public submissions

1. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with DCP 2013. The Council received no submissions.

Expert Evidence

1. The Court heard expert planning evidence from Mr Greg Forster, for the applicant, and Ms Kerry Gordon for the Council. Prior to the hearing the experts participated in a joint conferencing process which sought to address the issues in contention. Following the conferencing process, they prepared a joint expert report that was tendered as Exhibit 2.
2. The Court heard expert heritage evidence from Mr Graham Hall, for the applicant, and Mr David Logan for the Council. Prior to the hearing the experts participated in a joint conferencing process which sought to address the issues in contention. Following the conferencing process, they prepared a joint expert report that was tendered as Exhibit 4.

The heritage experts agree on the following:

1. The semi-detached houses at numbers 69 and 71 Boundary Street are separately listed as in items of environmental heritage in the Holroyd LEP.
2. Separate heritage inventory sheets were prepared for both items as part of the Holroyd heritage study 1993, and the Holroyd heritage review. These documents contain a statement of significance as well as historical information, recommendations and descriptions.
3. The items are in very poor structural and cosmetic condition. The experts agree that the schedule of works included in the Conservation Management Plan provides a sound basis for their repair.
4. The experts also agree that the proposed alteration works to the interior and exterior of the dwellings would have an acceptable impact on the heritage significance of the items.
5. The statement of significance for the items are as follows: 69 Boundary Street, Parramatta The low scale Late Victorian Duplex cottages at 69-71 Boundary Street, Parramatta have aesthetic significance as a representative example of the style and for the contribution it makes to the character of the immediate area. The house has lost some significance with its dilapidated appearance but retains its form, style and original fabric largely intact. It retains enough aesthetic significance for its part as a contributory item with the other buildings in Boundary Street to be significant as an important element in the streetscape. The houses are representative of the masonry workingmen's cottages that were once common in the area. 71 Boundary Street, Parramatta The low scale Late Victorian Duplex cottages at 69-71 Boundary Street, Parramatta have aesthetic significance as a representative example of the style and for the contribution it makes to the character of the immediate area. The house has lost some significance with its dilapidated appearance but retains its form, style and original fabric largely intact. It retains enough aesthetic significance for its part as a contributory item with the other buildings in Boundary Street to be significant as an important element in the streetscape. The houses are representative of the masonry workingmen's cottages that were once common in the area.
6. Whilst the experts agree that some form of addition, or further development at the rear of the pair, would be acceptable in principle, they disagree whether the proposed development is of an appropriate form, scale, siting and massing.

Is the development permissible?

1. The planning experts agree that the definition of the semi-detached dwellings changes with the consolidation of the site and the construction of the residential flat building (RFB). As a result of the proceeding it is agreed that the development will become prohibited under the R4 zone.
2. The planning experts also agree that the proposal could be permissible subject to the satisfaction of the provisions of clause 5.10(10). Of the five preconditions within this clause, Council argues that the development does not satisfy the following preconditions within the sub cl.: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and … (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and …
3. In his evidence, Mr Logan agrees with the statement of significance for the items and states that the rear yards of the dwellings are part of the original curtilage and provide a landscape setting that enhances their aesthetic value. In contrast to Mr Hall, he concludes that the state of dilapidation of the items is cosmetic, and has not removed their aesthetic significance. In conclusion, his evidence is that the significance of the items arises from meeting the criteria for historic, aesthetic, representative and rarity significance.
4. It is the evidence of Mr Logan that the protection provided by LEP 2013 for the subject items is not solely to the dwellings, but also their curtilages, which he concludes, provide part of their setting. It is his evidence that the proposed development does not facilitate the conservation of the heritage items as it compromises their visual setting. His reasoning in supporting this conclusion is as follows: The height, bulk, character and siting of the proposed RFB are unacceptable within the curtilage of the heritage item as they would have an adverse impact on its setting and, hence, heritage significance. … It (the proposed development) would diminish their historic and aesthetic values, by replacing the rear garden curtilages with a structure that would dominate the historic buildings due to its excessive height and insufficient separation (Exhibit 4).
5. Further, it is Mr Logan's view that the development, as proposed, would result in significant adverse impact on the heritage significance and setting of the heritage item due to the scale, form, character and siting of the proposed residential flat building. It is his evidence that the proposed development has a detrimental impact on the significance of the items, and it does not meet either the test in cl. 5.10(10) or the test in cl. 5.10(4) and should be refused.
6. The reasoning supporting Mr Logan's conclusion is that the impacts on the historic, aesthetic, representative and rarity significance arise from the development occur in three principle ways: 1. The extent of the visibility of the proposed residential flat development within the streetscape that arises from the scale, form and character of the building; It is Mr Logan's evidence that the heritage items can be experienced in a range of views from both sides of Boundary Street, including oblique views from the footpath to the east and west of the site. It is his evidence that the rear garden areas contribute to the dwellings' setting and visual appeal as they still have the appearance of being sited on their original deep lots. Their roofline is viewed against the sky rather than a backdrop of built form (Exhibit 4). Whilst Mr Logan acknowledges that the subject site is adjoined to the west and the rear by existing residential flat development he states: The ridge height of the proposed development is one metre higher that the tallest ridge of the western unit block. The acknowledged impact of this existing unit block should not justify development of a similar scale on the site of the heritage item when such development would extend the over-scaling effect resulting in detrimental impacts on the items' heritage significance (Exhibit 4). 1. The impacts of the siting of the proposed residential flat development on the curtilage of the heritage items; and It is Mr Logan's evidence that the proposed development will subsume the rear garden area and the sense of spaciousness behind the existing buildings, replacing it with a dominant building mass of substantially greater height and footprint area than those of the conjoined par of dwellings (Exhibit 4). It is Mr Logan's conclusion that the proposed development will significantly truncate the dwellings' historic curtilage. 1. The design of the proposed building is inconsistent with the character of the existing dwellings. It is Mr Logan's evidence that the impact of the large form and scale of the proposed development is inconsistent with that of the subject heritage items that modest in scale and massing and have a traditional symmetrically hipped roof form, which sets the buildings apart from most of the other buildings in the streetscape. Mr Logan supports his conclusion with the following reasoning: ..the overall roof form is complex, comprising a main hip/ jerking head, a lower hip at the front and a series of stepped skillion roof planes. On the front portion of the building, none of these elements are centrally positioned or symmetrically arranged for visual balance. This will result in an inharmonious relationship with the existing symmetrical roof form (Exhibit 4).
7. In relation to the concept of 'setting' Mr Logan refers to Article 8 of the Burra Charter which states: Conservation requires the retention of an appropriate setting. This includes retention of the visual and sensory setting, as well as the retention of the spiritual and other cultural relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes that would adversely affect the setting or relationships are not appropriate (Exhibit 6).
8. Included in part of the applicant's tenders are a Conservation Management Plan (Exhibit B), and an Independent Quantity Surveyors Report (Exhibit C). These documents identify and cost the heritage conservation works proposed to the heritage items. It is Mr Hall's evidence that the necessary conservation works can reasonably be funded only by sympathetic additional development for the site. It is his evidence that the proposal satisfies sub cl. (a) of cl. 5.10(10) as by allowing development it facilitates the conservation of the item (Exhibit 4).
9. In contrast to Mr Logan, Mr Hall's evidence within his Conservation Management Plan (Exhibit B) is that the statement of significance should be amended as follows: The item has historical significance as a rare example of a pair of semi-detached Victorian Georgian cottages demonstrating the early residential development of the area (Exhibit 4).
10. Mr Hall has formed this view on his assessment that the item no longer has aesthetic significance, and by the application of the guidelines for inclusion and exclusion contained within the document Assessing Heritage Significance, produced by the NSW Heritage Office. His reasoning for this conclusion is as follows: The item has been more than temporarily altered, as the physical evidence demonstrates. It satisfies none of the guidelines for inclusion, and all of those for exclusion. It no longer has aesthetic significance (Exhibit 4).
11. In response to Mr Logan's evidence, Mr Hall concludes that in his assessment the impact of the new development on the items heritage significance will be minor. He supports this conclusion on the basis that the new building will be at the rear of the site and that it will be visible from Boundary Street, only fractionally over the ridge, and more at oblique angles between the item and neighbouring buildings. He concludes that the development will not be noticeable in the streetscape and will not overwhelm the heritage items (Exhibit 4).
12. In contrast to the assessment of Mr Logan, it is Mr Hall's view that the proposed development is appropriately distinctive by being more articulated, and distinctive, it its architectural detailing which contrasts with the heritage item.
13. Based on the proceeding evidence it is Mr Hall's conclusion that the development meets the test in cl. 5.10(10)(d) as the proposed alterations to the item are sympathetic and the new building will not adversely affect its setting (Exhibit 4).
14. Mr Clay submits that cl 5.10(10) is a facultative clause that allows for development that would otherwise be prohibited by LEP 2013. It is his submission that within the chapeau to cl.510 (10) this provision extends to development on land on which the heritage item is situated. It is his conclusion therefore that the instrument anticipates a change in the setting of the item. Further, he argues that the detail in Exhibit C demonstrates that the conservation works proposed as part of the application are not economic without additional development.
15. Mr Clay submits that the combination of planning controls within the LEP create an expectation of a building at the rear of the heritage item; in a residential flat building form; that will be visible from the public domain and therefore change the current context. Mr Clay submits for the Court to undertake the assessment appropriately, it is necessary to form a view of what contributes to the heritage significance of the items, and how this is impacted by the proposal.
16. It is Mr Clay's submission that both cl. 5.10(4) and cl 5.10(10) require the Court to consider whether the proposed development has an appropriate level of "respect" for the heritage item. He argues for the development to be found not to satisfy the requirements of cl. 5.10 it is not sufficient to find that the setting of the heritage items is impacted, as argued by Mr Logan. It is Mr Clay's conclusion that the development satisfies the relevant sub. clauses of cl. 5.10 and cl 5.10(4) and therefore is permissible and the precondition to consent is met.
17. In the alternative Mr Nash submits that cl. 5.10 (10) requires a state of positive satisfaction with each of the sub. clauses for the development to be permissible. It is his submission that Council maintains the development does not satisfy the following sub. clauses: (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and … (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and …
18. In relation to sub cl. (a) Mr Nash argues that, whilst the conservation works proposed by the applicant will contribute to the restoration of the physical fabric, conservation of the items includes respecting its curtilage and its setting. It is Mr Nash's submission that, on the evidence of Mr Logan, the Court would conclude that conservation is not facilitated because the heritage significance is detrimentally impacted by the proposal.
19. In relation to sub cl. (d) Mr Nash submits that the appropriate reading of the clause is that any degree of adverse impact on the item, or the setting, would remove the Court's power to approve the application. In contrast to Mr Clay he argues this assessment is distinguished from the assessment under cl. 5.10(4) were the Court is required to consider the impact on heritage significance, and could proceed to assess that impact concurrently with other matters under s79C of the Act.

Findings

1. Both experts agree that the concept of Heritage curtilage is defined in the NSW Heritage Office's publication "Heritage Curtilages" as the area of land (including land covered by water) surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance. I accept the evidence of Mr Logan [at par. 33] that the concept of 'setting' included in Clause 5.10(10) is occupied in part by the curtilages of the items. I am satisfied this is consistent with the approach to conservation in the Burra Charter which states that Conservation requires the retention of an appropriate setting.
2. I am satisfied that the statement of significance details the aesthetic significance of the building arises from its low scale, simple hipped roof form and symmetrical building form.
3. Visibility from Boundary Street of new development at the rear of the property is not an impact if and of itself. However the statement of significance for both the items includes the following recommendations within the listing: The building should be retained on the LEP. Although the building has been modified, it retains the earlier character of the building style. Therefore, any modifications or additions should be restricted to those areas of the building which are not visible from the street. … The small scale appearance of the building should be retained by not allowing additions to break through the roofline. Additions could be allowed at the rear of the building and should be in sympathy with the existing character of the building. [emphasis added]
4. With the benefit of the site visit, a review of the architectural drawings and the photomontage, I do not concur with the conclusion of Mr Hall that the development will not be noticeable in the streetscape and will not overwhelm the heritage items. I prefer the evidence of Mr Logan, and his reasoning detailed at paragraph [36], that the scale, form, character and siting of the proposed residential flat building will detrimentally impact the aesthetic significance of the items.
5. I am satisfied on the evidence that there is a detrimental impact that arises from the proposed development, and that impact is of such import that it adversely affects the significance of the heritage item and warrants the conclusion that the provisions of cl. 5.10(10) are not met for a number of reasons. In my assessment this detrimental impact arises from the following: 1. The proximity of the proposed development to the rear of the heritage items, which intrudes into the curtilage of the items; 2. The height of the proposed residential flat building, and its site coverage which in combination result in a bulky form that has a detrimental impact on the heritage items by being overbearing; and 3. The proposed approach to the architectural design and materiality, that is antipathetic to the simplicity and symmetrical character of the heritage items.
6. I accept the submission from Mr Clay that cl. 5.10(10) is a facultative provision, and the evidence in Exhibit C of the costs of the conservation works required to the heritage items. However given the detrimental impacts outlined in the proceeding [par. 53 - 54] I find that sub- clause (d) is not satisfied.
7. Sub- clause (a) of cl. 5.10(10) requires that conservation of the item is facilitated by the granting of consent. O'NeilI, C considered the operation of this clause in David Fox v North Sydney Council [2016] NSWLEC 1366 at [par. 47], as follows: Facilitating conservation requires a higher threshold than just ensuring the proposal does not adversely impact on the identified heritage significance of an item. In order to facilitate the conservation of the heritage item, the proposal must assist in retaining its cultural significance, such as by revealing and interpreting the heritage significance of the item.
8. I accept the submission of Mr Nash that, consistent with the above judgement, the conservation of the items includes ensuring that the development respects their curtilage and setting to facilitate the retention and interpretation of the heritage significance of the items. I acknowledge the development proposes significant conservation works, which the heritage experts agree are a sound basis for the repair of the items. However, I find that the impacts identified are sufficient to form a view that sub- cl. (a) is not satisfied by the development.

No power to grant consent

1. Development consent must be refused as the preconditions under sub-cl 5.10(10) of LEP 2013 are not satisfied, and without the operation of this clause the proposal is prohibited in the R4 zone.

Is the impact of the proposed development on the heritage significance of the items acceptable?

1. Notwithstanding that as a result of the preceding findings the proposed development is prohibited, I have considered the precondition at cl 5.10(4), namely whether the impact of the proposed development on the heritage significance of the items is acceptable. Consistent my findings in paragraphs [50-57] I find the impact of the proposed development on the heritage significance of the items sufficiently detrimental to warrant refusal of the application pursuant to s79C(1)(b) of the Act.

Orders:

1. The orders of the Court are: 1. The applicant is granted leave to rely on amended plans; 2. The appeal is dismissed; 3. Development application DA 839/2016 for demolition of existing carport and outbuildings, removal of trees and construction of a residential flat building to the rear of two existing heritage items, proposed at 65-71 Boundary Street Granville is refused. 4. The exhibits are returned with the exception of Exhibits 1, A and G ……………. D M Dickson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2017