Hardy v Ku-ring-gai Council [2018] NSWLEC 1246 | Case summary

Land and Environment Court (NSW)|2018-05-15

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 0187/17 for alterations and additions to an existing dwelling, demolition of the existing garage and swimming pool and a new swimming pool and landscaping (the proposal) at 4 Powell Street, Killara (the site), by Ku-ring-gai Council (the Council).
The appeal was subject to mandatory conciliation on 14 May 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.
The parties consented to the admission of evidence given on-site during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.
The hearing was reopened and the applicant adduced further evidence in the form of an amended written request to vary the height of buildings development standard (exhibit N) (Hardy v Ku-ring-gai Council [2018] NSWLEC 1245).

The site and its context

The site is located on the north-western side of Powell Street, close to the Pacific Highway intersection. The site has an area of 1,784m2. The site falls towards the rear.
The site contains an existing dwelling constructed in the Federation Arts and Crafts architectural style in 1905. Additions and alterations have been made to the original dwelling at the rear.

The proposal

The proposal (exhibit B) includes the following works:

Demolish the existing garage, rear shed and swimming pool;
New swimming pool and landscaping, new front fence;
Construct a three storey extension to the existing rear wing (on the western side of the dwelling) with a ridge to match the existing ridge height of the wing at RL134.11;
Basement: New basement level including a 3 car garage, laundry, bathroom and a living area;
Ground Floor: extension of the western wing to provide a new family room, new terraces over the basement level, enclosure of part of the existing rear terrace, new kitchen, new window adjacent to the entry, kitchen door to replace window in the front elevation;
First Floor: new main bedroom suite over extended western wing, internal alterations to provide new bathroom and reconfigure bedroom 5; addition of a stair to access new attic;
Attic: new attic room and rear facing balcony including rear facing gable dormer.

Planning framework

The site is zoned R2 Low Density Residential under Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) and the proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, 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 for housing that is compatible with the existing environmental and built character of Ku-ring-gai.
The site is identified as a heritage item ("dwelling house" Schedule 5 LEP 2015 item 346). Clause 5.10 of LEP includes the following relevant terms: 5.10 Heritage conservation (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, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following: (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (4) Effect of proposed development on heritage significance 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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
The application includes a cl 4.6 written request to vary the 9.5m height of buildings development standard for the site under cl 4.3 of LEP 2015. The relevant terms of cl 4.6 of LEP 2015 are as follows: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,
The relevant objectives and controls for alterations and additions to heritage items of Ku-ring-gai Development Control Plan 2015 (DCP 2015) are at section 19E, as follows: Objectives 1 To ensure the significant external features of a Heritage Item and its setting are retained and new development is sympathetic in terms of bulk, form, style, character, scale, and materials. 2 To encourage the reinstatement of missing elements, where known, and the removal of later unsympathetic changes. 3 To ensure that the materials, finishes, and colours of new work enhances the identified significance of the Heritage Item. Controls 3 New work to Heritage Items may be identifiable as new; however, works are to respect and have minimal impact on the property heritage significance. 4 All significant built features of a Heritage Item are to be retained and conserved. 5 Original materials, finishes and details are to be retained and their repair using traditional techniques in encouraged. 6 Alterations and additions are to respect the scale, form, height, location, materials and colours of the Heritage Item. 7 Alterations and additions are be located at the rear or side of the building to maintain the integrity of the prominent elevations and streetscape contribution.

Expert evidence

The applicant relied on the expert heritage and planning evidence of Mr Brian McDonald and the Council relied on the expert heritage evidence of Ms Kate Higgins.
The applicant relied on the expert evidence of Ms Catriona Mackenzie (arboriculture) and Ms Jane Britt (landscape design). The Council relied on the expert evidence of Ms Janice Buteux-Wheeler (planning) and Ms Tempe Beaven (arboriculture and landscape). These experts participated in the preparation of joint reports (exhibits 3 and 4) and were not required to give evidence during the hearing.
During the conciliation phase of the proceedings, the landscape and arboricultural experts agreed on changes to be made to the landscape plan and their agreements were noted on a marked up version of the landscape plan (exhibit C). I accept the agreement of those experts and I accept that those agreed changes to the landscape plan addressed the Council's contentions regarding landscaping to Ms Beaven's satisfaction.

Amended proposal

The applicant tendered an amended proposal (exhibit L) which included some changes to the proposal, both on architectural drawings and by condition, discussed during the conciliation phase by the heritage experts. Some of those changes had been agreed by the experts and some had not. The applicant submitted that leave was not sought to rely on the amended proposal, but that those changes could be made by the Court in an "amber light" approach, either by direction for amended architectural plans or by condition imposed on the consent (as described by Sheahan J in Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 [65] and quoting Moore SC [as he then was] in Ali v Liverpool City Council [2009] NSWLEC 1327 [120]).
The applicant submitted that the attic alterations and additions, although shown on exhibit L, could also be deleted by condition.
For the reasons set out in the judgment, I am satisfied that the Council's contention that the proposal would have an unacceptable impact on the heritage significance of the existing dwelling, listed as a local heritage item, is made out and the amendments shown in exhibit L do not sufficiently address the Council's contention to warrant directions be given to the applicant to amend the proposal.
The "amber light" approach by the Court in merits appeals is only warranted in limited circumstances when the change to the proposal would address the contention raised; when the outcome of the directed change or condition is certain and discrete (without risk of consequential and new environmental impacts); when the change envisaged has been the subject of evidence given during the hearing; and when the applicant consents to such a direction or condition.

Clause 4.6 written request for an exceedance of the height of buildings

The proposal exceeds the height of buildings development standard of 9.5m in LEP 2015 (Height of Buildings Map - Sheet HOB_014), as shown on the architectural plans drawing numbers 20, 21 and 22 (exhibits B and N). The areas of the proposal that exceed the development standard include the extension towards the rear of the northern ridge on the western side of the site by a maximum of 900mm (exhibit N, Annexure 3) and the rear dormer over a balcony leading from the proposed attic room in the existing roof. The ridge of the original portion of the existing dwelling is greater than 9.5m above existing ground level.
In order for there to be power to grant development consent for a development that contravenes a development standard in LEP 2015, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2015); that the applicant's written request has adequately addressed that compliance with the development standards is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2015) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2015).
The objectives of the height of buildings development standard are as follows: (a) to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres, (b) to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity, (c) to enable development with a built form that is compatible with the size of the land to be developed.
The applicant's written request (exhibit N) justifies the non-compliance of the proposal with the height of buildings development standard on the following bases:

The overall maximum height of the existing dwelling remains unchanged;
The attic dormer window is located at the rear of the dwelling and has been designed to site unobtrusively within the rear facing roof planes of the existing roof form, it is lower than the ridge height of the main roof, it is not visible from the surrounding public domain or from the heritage items in Powell Street;
The exceedances of the height of building development standard does not result in any amenity impacts on neighbouring land, including view loss, privacy or overshadowing;
The extension of the existing roof ridge towards the rear of the site is consistent with the form and materials of the 1995 additions;
The overall scale of the development is consistent with the dimensions of the site; and
The proposal has a minimal impact on the heritage significance of the dwelling.

Although for the reasons set out below in relation to the merits of the proposal I do not accept that the proposal has a minimal impact on the heritage significance of the dwelling; I am, however, satisfied that the applicant's written request to vary the development standard has adequately addressed that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances, that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone and that there are sufficient environmental planning grounds to justify contravening the development standard.

Impact of the proposal on the heritage significance of the dwelling

I accept the agreements of the heritage experts as follows:

Heritage buildings should be permitted to evolve and change, however, it is important how that change is managed so as to retain the heritage significance of the item;
The dwelling is appropriately identified as a local heritage item;
The alterations and additions to the dwelling approved in 1939 are of moderate significance and contribute to the heritage significance of the dwelling;
The c1995 additions are not sensitive to the heritage significance of the original and early fabric of the dwelling;
The rear wing added to the dwelling in c1995 can be extended in an appropriate form to provide additional accommodation;
The existing garage and rear shed can be demolished as the condition of the garage is so poor that retention is not warranted;
The proposal in exhibit L to position the new stair to the attic over the existing stair in the upper stair hall would be visually and physically intrusive;
The front fence detail in exhibit F was close to being agreed as acceptable following the changes made in red by Mr McDonald which included the note, "70x20mm slats with 40mm gap" and the experts agreed that a front fence based on the appearance of the original fence in the 1908 photo would be acceptable.

I accept and agree with Ms Higgins' evidence that the proposal would result in unacceptable impacts on the heritage significance of the dwelling, for the following reasons:

The external form of the existing original roof is a key architectural feature of the design of the original dwelling and it is an intact original feature. The proposed rear dormer in the existing roof is not a traditional form associated with the style of this roof; instead it introduces an incongruous feature that sits awkwardly over the original rear gable.
The partial demolition of the gable roof at the rear of the original roof to accommodate a balcony is not acceptable as it results in the loss of the form and fabric of the original roof and is uncharacteristic.
The "eyelid" window proposed to be inserted to the original gable end of the main roof to provide sufficient headroom over the proposed attic stair landing in exhibit B is intrusive and contrary to the style and detailing of the external form of the original roof. The main roof is a key architectural feature of the dwelling and should be retained and conserved.
The position of the stair access to the attic room in exhibit B is awkwardly imposed onto the existing spatial layout of the first floor and the stair sits uncomfortably and obtrusively within the first floor hall; the access between the existing stair and the attic stair is unresolved and cumbersome; the insertion of the stair requires the removal of original fabric identified as being of high significance and the insertion of a bulkhead within the original Bedroom 2. The insertion of the attic stair within the first floor erodes the form and proportions of the original rooms and fabric of these rooms and has an unacceptable impact on the original fabric of these rooms, identified as being of high significance by the Statement of Heritage Impact.
The attic room requires significant and considerable adverse changes to the original fabric of the dwelling identified as being of high significance by the Statement of Heritage Impact and for this reason the insertion of an attic room is unacceptable.
The scale and bulk of the basement addition overwhelms the proportions of the existing dwelling, particularly the original and early fabric of the existing dwelling identified as high significance by the Statement of Heritage Impact. The rooms in the basement are oversized and do not respond in any way to the scale and spatial layout of the existing dwelling. The internal stair access between the ground floor and new basement level is awkwardly positioned.
As a result of the oversized basement addition, the relationship between the existing dwelling and the garden will be interrupted by the expanse of terrace at the rear of the dwelling. The scale of this rear basement addition, including the terrace over, is insensitive to the proportions of the existing dwelling both internally and externally.
The proposed glazed enclosure at the rear of the dwelling is architecturally unresolved and creates an awkward relationship between the existing fabric and the addition. The applicant justified the rear enclosure on the basis it avoided having to make an opening in the existing laundry. In the original layout, there was a corridor between the kitchen and dining room which was later used for a toilet and the circulation was changed to connect the entry foyer and the kitchen via the bedroom in the north-western corner of the ground floor.
The proposed pergola over the terrace has not been designed to enhance and complement the original and early architecture of the dwelling identified as being of high and moderate significance by the Statement of Heritage Impact.
The proposal is for alterations and additions to the existing dwelling that are unsympathetic to the original and early fabric of the dwelling identified as having high and moderate significance by the Statement of Heritage Impact.

I accept and agree with Ms Higgins evidence that the insertion of a door in the front façade erodes the primacy and focus of the entry to the dwelling. The applicant deleted this door and retained the existing window in exhibit L.
I accept Mr McDonald's evidence that the fabric of the rear terrace, including the concrete slab and piers and the stair adjacent to the living room leading from the terrace to the garden, whether constructed in c1939 or c1960, are not integral fabric to the heritage significance of the dwelling and this fabric could be removed. It is important that the terrace and stair addition are replaced by new work which is sympathetic and responds appropriately to the scale, proportions, spatial layout, detailing and materials of the original and early fabric of the dwelling.
I do not accept the proposition that an intrusive or unsympathetic addition to a heritage item is of less concern if the alteration cannot be viewed from the public domain. Clause 5.10(4) of LEP 2015 requires consideration of the effect of the proposal on the heritage significance of the item. Eroding the heritage significance of listed heritage items results in the cumulative loss of heritage values and impacts on the setting of a group of heritage items, whether or not those unsympathetic changes can be viewed from the public domain or from another heritage item in the vicinity of the site.

Conclusion

Having considered the effect of the proposal on the heritage significance of the item pursuant to cl 5.10(4) of LEP 2015, it is my opinion, based on all of the evidence before me, that the proposal fails to conserve the heritage significance of the heritage item and fails to ensure that the significant external features of the heritage item are retained and the new development is sympathetic to the original and early fabric of the dwelling in terms of bulk, form, style, character, scale, and materials.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 0187/17 for alterations and additions to a local heritage item at 4 Powell Street, Killara, is refused. 3. The exhibits, other than exhibits 1, A and B, are returned.

Susan O'Neill 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: 24 May 2018

Hardy v Ku-ring-gai Council

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