The applicant's position is that the subject site is not listed as a heritage item, but that the listing applies only to the 'dwelling house'. Although both heritage experts agree (in addition to statements in the Heritage Management Documents) that the site is listed as a heritage item: Exhibit 5, p. 3 opinion of Ms Schutz; Exhibit 6 at p. 3, [4].
If the Court accepts the applicant's argument that the heritage item is only the dwelling then that brings into question whether the applicant satisfies 5.10(10) at all.
What is the heritage significance of the item
Both heritage experts agree that the significance of the heritage item is not limited to the subject dwelling but includes the garden setting and presentation to the streetscape, in addition to an associational relationship with John Anderson: Exhibit 5, pp. 4 - 6 (Ms Holtham); p. 9 and p. 11 (Ms Schutz).
Can the majority of development proposed in the Further Amended DA be characterised as development 'of the land on which such a building is erected' for the purpose of cl 5.10(10)?
On the applicant's case the only heritage item on the subject site is the dwelling. The Applicant's position gives rise to a question as to whether the Further Amended DA falls within the scope of cl 5.10(10) at all. That is, does the Further Amended DA seek consent to development '…of the land on which such a building [that is a heritage item] is erected'? If the Applicant cannot so satisfy the Court then it fails in limine.
There is a constructional choice as to whether the reference to 'land' in cl 5.10(10) is to the land physically occupied by the footprint of a building that is a heritage item or if it is to the cadastral boundary. Plainly the applicant's position is that the reference to 'land' is to the cadastral boundary of 2 Nulla Nulla Street; but principles of interpretation and judicial authority suggest that is not correct.
The decision of the Court of Appeal in Stamford Property Services v Mulpha Australia [2019] NSWCA 141, although in the context of the Heritage Act 1977, supports the proposition that the reference to 'land on which such a building is erected' in cl 5.10(1) should be construed as only that part of the lot which a building physically occupies (ie its footprint) and not the whole of the cadastral lot. If that be the accepted interpretation (with the exception of the proposed development to the dwelling) having regard to the applicant's position that it is only the dwelling house that is listed as a heritage item, then Further Amended DA cannot take the benefit of cl. 5.10(10), being outside the footprint of that dwelling and therefore consent must be refused.
In Stamford Property Services v Mulpha Australia the Court of Appeal considered the interpretation of s 57(1)(e) of the Heritage Act 1977 and in particular whether development was 'in relation to the land on which the building…is situated'. Leeming JA and Emmett AJA held that properly construed, the reference to 'land on which the building is situated' means the part of the lot on which the building has been build and not the whole of the cadastral lot': per Leeming JA at [94]; see also Emmett AJA at [148]-[150] and [159].
Although not in precisely the same terms it is noted that there is a strong connection between the subject matter, scope, and purpose of the Environmental Planning and Assessment Act 1979 (the express objects of which encompass the promotion of built and cultural heritage) (See also eg Environmental Planning and Assessment Act 1979, s 3.20; Schedule 5, Part 4, cl 3; Standard Instrument (Local Environmental Plans) Order 2006; standard instrument, Schedule 5 - direction) with that of the subject matter, scope, and purpose of the Heritage Act 1977 such that the Court of Appeal's decision would be strongly persuasive of the correct approach to interpreting the meaning of 'the land on which such a building is erected' within cl 5.10(10).
That the reference to 'land' is only to that part on which the building (that is a heritage item) is actually physically erected (ie within its footprint) and not to the cadastral boundary, is also consistent with the High Court's interpretation of 'land' under the EP&A Act. In particular that references to land under that Act are directed to land as a topographical entity and are concerned with the physical use made of, or affecting, the topographical entity of land - not private rights of ownership (North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 per Brennan CJ, Dawson, Toohey, McHugh, Gummow JJ at p. 481; Although since amended to include a reference to 'a building erected on the land' - s 1.4).
What development is proposed for the heritage dwelling
According to the applicant in opening address, the proposed works to the heritage dwelling are identified in:
(a) Heritage 21, Statement of Heritage Impact at 5.0 - Works Proposed; and
(b) Heritage 21, Heritage Management Document at 6.0 - Schedule of Conservation Works.
In respect of the Statement of Heritage Impact it is evident when one looks at the sub-set of architectural plans referred to in that document (bearing in mind that those plans have now been superseded) and also the description of works at 6.2 that the statement at 5.0 - Works Proposed is incomplete. The obscured nature of the scope of demolition and consequential works is further evident when one looks at the structural report prepared by Northrop (referred to at Exhibit B, Tab 3, p. 60) and the DA Cost Estimate report (also referred to at p. 60).
In respect of the Heritage Management Document the applicant does not appear to appreciate its express limitations. Those limitations are identified at 1.6 - Limitations and in particular that the report:
…is based upon an assessment of existing original fabric that is to remain and be maintained. Any new works are beyond the scope of this report. [emphasis added]
The identified 6.0 - Schedule of Conservation Works can only be understood with the above limitations in mind. In this regard the proposed internal demolition. The unclear nature of the demolition and consequential works was identified by Ms Gregory, although in the context of Contention 23 dealing with the inadequacy of the architectural plans: Exhibit 4 at [24]. It was also raised by Ms Holtham in the Joint Planning and Heritage Report: Exhibit 6, p. 5 at [11]-[12].
In respect of the Joint Planning and Heritage Report, the Applicant's heritage expert, Ms Schutz, did not respond to the aforementioned concerns.
Moreover, the heritage experts agree that, in respect of Contention 19 that insufficient information relating to the partial demolition of the heritage item (as particularised referring to the demolition of both built and landscape elements which has not been adequately justified), more documentation is required: Exhibit 5 at p. 27. That agreed position is telling. In the absence of sufficient information the Court could cannot reasonably form the requisite positive state of satisfaction of the matters enumerated in cl 5.10(10). That positive state of satisfaction is a jurisdictional pre-requisite to an exercise of power to grant consent to the development for the purpose of a residential flat building.
The Applicant's reliance upon cl 5.10(10) is fundamental to its case, as in the absence of a favourable decision under that provision (if it is available at all), the development for the purpose of a residential flat building is prohibited in the zone R3 Medium Density Residential. Accordingly, the Further Amended DA must be refused.
In addition to, but related to the foregoing, the Court is not in a position to properly consider the actual effect of the proposed development on the heritage significance of the heritage item. As such, the Court could not be reasonably satisfied that the objectives of cl 5.10 were achieved and the Further Amended DA should be refused.
Is the conservation of the heritage item facilitated by the granting of consent - cl 5.10(a)
The need to carry out minor maintenance works which is an ordinary incident of property ownership is not within the scope and purpose of conservation work within the meaning of cl 5.10(10). Although the ordinary and natural meaning of the term 'facilitate' is make easy or less difficult or more easily achieved, reasonably construed, it is not the purpose of that clause to enable reliance upon works of a de minimis nature (Parramatta City Council v Hale (1982) 47 LGRA 319 at p. 335 per Street CJ). Alternatively, the fact that what is proposed constitutes minor maintenance work would weigh heavily in any merit balancing assessment as to whether consent should be granted.
The heritage experts agree that, in interpreting cl 5.10(1)(a) of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) regard should be had to the meaning of the term 'conservation' as defined by the Burra Charter, 2013: Exhibit 6 at [5], [9].
Article 8 of the Burra Charter (2013) provides as follows:
Conservation requires the retention of an appropriate setting, This includes retention of the visual and sensory setting, as well as the retention of spiritual and other cultural relationships that contribute to the cultural significance of the place.
New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate.
Setting, in turn, means 'the immediate and extended environment of a place that is part of or contributes to its cultural significance and distinctive character.'19 The explanatory notes to the definition of setting note that the following may be included: the visual setting including views to and from the place; historical and contemporary relationships, such as use and activities; social practices.20
That a setting may include historical relationships such as use and activities and social practices is relevant to a consideration of the proposed loss of the tennis court.
As this Court found in David Fox v North Sydney Council [2016] NSWLEC 1366 at [47]:
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.
In George v City of Parramatta Council [2017] NSWLEC 1366 at [54] the Court found that the following detrimental impacts were sufficient to warrant the conclusion that cl 5.10(10) was not satisfied:
(a) 'the proximity of the proposed development to the rear of the heritage items, which intrudes into the curtilage of the items;
(b) 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
(c) the proposed approach to the architectural design and materiality, that is antipathetic to the simplicity and symmetrical character of the heritage items.'
The statement of adverse impacts in George v City of Parramatta Council above (with the exception of a reference to simplicity and symmetrical character of the heritage item) equally apply to the Further Amended DA.
The conservation of heritage items includes ensuring that development respects their curtilage and setting to facilitate the retention and interpretation of its heritage significance: George v City of Parramatta Council [2017] NSWLEC 1366 at [57].
The Court could not reasonably form a positive opinion that the conservation of the heritage item is facilitated by the consent in circumstances where:
(a) the scope of demolition and consequential works is unresolved;
(b) the heritage experts agree that, in respect of the contention that there is insufficient information relating to the partial demolition of the heritage item (contention 19), more documentation is required: Exhibit 5, at pp. 26 - 28;
(c) the planning experts agree that the site analysis is inadequate: Exhibit 4, p. 16 [30]; see submissions at [67]-[68] below - no supplementary site analysis forming part of the Further Amended DA;
(d) the Applicant's town planner, Mr Mead, impliedly accepts that the upper level of the residential flat building is dominant (notwithstanding its significant reduction consequent upon the Further Amended DA): Exhibit 7, p. 48 at [129];
(e) the Applicant's various heritage documents forming part of the Further Amended DA assessed the tennis court as of moderate heritage significance. The Applicant's heritage expert did not demure from that assessment: Exhibit 5, p. 6;
(f) both heritage experts agree that the significance of the heritage item is not limited to the subject dwelling, but includes the garden setting and presentation to the streetscape, in addition to an associational relationship with John Anderson: Exhibit 5, pp. 4 - 6 (Ms Holtham); p. 9 and p. 11 (Ms Schutz);
(g) on the evidence of Ms Holtham, which the Court should prefer having regard to her extensive qualifications and experience, there will be a significant adverse impact on the heritage item by reason of loss of 'loss of contributory landscaping elements including the tennis court and mature trees, ultimately undermining the garden setting, which is identified as significant to the item': Exhibit 5, p. 4. See further opinion at pp. 5 - 6. Ms Holtham was further of the opinion that the loss of the tennis court would result in a detrimental and permanent impact on the ability of a heritage item to communicate and represent historic, associational and social significance: Exhibit 5, p. 6.
Even if the Court were to conclude, contrary to the submissions above, that the Further Amended DA satisfied the first limb of cl 5.10(10), and putting aside satisfaction of the other limbs, the Court is left with a discretion as to whether it would be appropriate to grant consent to development that would otherwise be prohibited - namely a residential flat building. The Respondent submits that in that discretionary balancing exercise the Court would give particular weight to the fact that there is hardly any necessary conservation work.
Development in accordance with an approved heritage management document - cl 5.10(10)(b)
Having regard to the inconsistencies in the material forming part of the Further Amended DA and the express limitations in the Heritage Management Document, the Court would be circumspect as to whether this precondition is satisfied. The respondent says it has not. But one ready example is that the heritage documents (whether that be the Heritage Impact Statement or Heritage Management Document) are silent as to the structural works that are intended to be carried out in order to convert the attic into a bedroom: Northrop Structural Report, Exhibit B, Tab 7, p. 255; Exhibit 6, p. 11, opinion of Ms Holtham.
What is the necessary conservation work? - cl. 5.10(10)(c)
Pursuant to cl 5.10(10)(c) of the LEP, a consent authority must for a positive state of satisfaction that 'the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out'. This is addressed in the Statement of Heritage Impact at Exhibit B, Tab 3, pp. 118-119. It appears that the Applicant takes the position that all work to the existing dwelling is necessary conservation work.
The proposition that all the work proposed constitutes necessary conservation work has not been made good. At a base level that is because the need for any such works is not yet known. When one looks at the Heritage Management Document at 6.0 - Schedule of Conservation Works and the conservation actions proposed it is plain that the existing condition of the majority of items are unassessed and as such the need for any particular work outlined is speculative in nature. The schedule of works are more in the form of identification of the investigations that will need to occur and identification of what work might be carried out. The actual scope of work that will be carried out is uncertain.
In the case at hand the scope of work for which development consent is sought is uncertain. This is addressed in respect of the different types of development for which consent is required below.
Demolition/alteration of exterior
Council contends insufficient information relating to the partial demolition of the heritage item has been provided (Contention 19). In particular, that the proposed development includes the demolition of a number of built and landscaped elements, which has not been adequately justified. In response to those matters, both heritage experts agree that more documentation is required: Exhibit 5, at pp. 26-27
Ms Holtham has given evidence that '…the full extent of conservation work is not accurately represented on the plans and the consent authority cannot grant consent for speculative works': Exhibit 5 at [12]. The uncertainty regarding the work proposed to the exterior of the heritage dwelling is evident when comparing the Heritage Management Document, prepared by Heritage 21, dated December 2019 with the Architectural drawings. This includes as an example, automated privacy blinds proposed to the eastern side of veranda (Proposed Ground Floor Plan, DA 1.103_3). There has been no assessment of the impact of the installation of such work. The only apparent reference is to a general recommendation in the Heritage Management Document that '[w]here introducing canvas blinds to the timber posts of the eastern veranda, minimise penetrations and ensure the box is as small as possible. The box is to be located on the inside face and painted to match the existing paint of the timber post to ensure it has minimal visual impact': p. 46.
There is also uncertainty regarding the existing brick, sandstone, and timber fencing. The Statement of Heritage Impact says that this will be reinstated: Exhibit B, Tab 3, p. 121. Some of the architectural plans refer to the existing fencing on the western boundary as being replaced whilst others yet again note that it will retained (the extent of retention also differing in the drawings). See Section B-B, Sheet 1 with notation referable to fence on western boundary that 'existing non-original fence replaced with timber post & paling fence in accordance with heritage consultant's recommendations': Exhibit C, Tab 27, p. 406. Compare Existing & Demolition Site Plan, DA.1.001_1: Exhibit B, Tab 24, p. 382 and Existing & Demolition Ground Floor Plan, DA 1.002_01: Exhibit B, Tab 25(a), p. 384.
Internal changes
The Existing & Demolition Ground Floor Plan, Drawing DA 1.002_01 (Exhibit B, Tab 25a) shows the demolition of internal walls to the heritage dwelling. These are original lime plastered walls with high significance: Exhibit D, Tab 49, p. 713. It is uncertain what consequential changes are proposed to this area.
With the benefit of a site inspection and comparing the photographs of the two bathrooms in the Conservation Management Plan (Exhibit D, Tab 49, p. 740 and 744) with the layout shown on Proposed Ground Floor Plan, DA 1.103_05 (Exhibit E, Tab 2) it is evident that there is an intention to renovate the two bathrooms. The scope of works and their impact to the heritage fabric of the building is unknown. That such works are proposed is supported by the Quantity Surveying Report: Exhibit C, Tab 44, p. 510.
During the site inspection the general location of the walls to be demolished was pointed out to the Court. The wall vents on some of these walls was also pointed out. The wall vent for the former pantry room was identified in the Conversation Management Plan as significant under the 'physical description' (Exhibit D, Tab 49, p. 717), although allocated a 'high' significance rating in the table which followed (p. 718).
The main bathroom has original lime plastered walls and retained (read as original) brick vents. That vent was allocated as of 'high' significance: Exhibit D, Tab 49, p. 741.
The vent above the stairway to the roof cavity is shown in Figure 150 and identified as having 'high' significance: Exhibit D, Tab 49, p. 714
Will the proposed development in the Further Amended DA adversely affect the heritage significance of the heritage item, including its setting? - cl 5.10(10)(d)
For all of the reasons already outlined above, the Court could not form an opinion of the negative proposition, namely that the development would not adversely affect the heritage significance of the item. Indeed, it is likely to form the opinion that there will in fact be an adverse impact.
Any significant adverse effect on the amenity of the surrounding area - cl 5.10(10)(e)
Ms Gregory, Town Planner, gave evidence for the Respondent. In respect of the breach of the 11.5m height control she was of the opinion that the proposal before the Court '…will result in a building that will be highly visible from parts of this street [ie Nulla Nulla]'. Of, note, the visibility of the building will increase towards the cul-de-sac where it will be clearly visible from land zoned R2 Low Density Residential. That will be plainly evident to the Court having undertaking a view.
Recognising that subsequent to the joint reporting process the applicant advanced its Further Amended DA, Ms Gregory was asked to explain to the Court to what extent, if any, the documents comprising Exhibit E changed the opinion that she expressed in that report. She did not demur from those statements.
Dr Zandaro was of the opinion that there would be '…a detrimental impact to local amenity with additional height and bulk adjacent to the heritage -listed house, to neighbouring properties and within the streetscape'. Similar to the above, Dr Zanardo was asked to explain to the Court to what extent, if any, the documents comprising Exhibit E changed the opinion that he expressed in the joint report. He did not demur from those statements.
Mr Dickson's evidence as to the impacts of an exceedance in the building height development standard focuses on its relationship to Turramurra Avenue. Other than a bare assertion that '[i]n the visual context of the site, which includes five storey development whether viewed from the north or south on Turramurra Avenue or east or west on Nulla Nulla Street, the proposal will not be out of scale of character with the existing or likely future character' he was otherwise silent as to the impacts from Nulla Nulla Street. In oral examination in chief Mr Dickson made reference to the conservation area at the eastern end of Nulla Nulla Street. His evidence, both written and oral, was otherwise silent as to the impacts that would be had on the relationship between the heritage subject site and that conservation area.
The cul-de-sac of Nulla Nulla Street forms part of a heritage conservation area in addition to two properties at its eastern end being identified as heritage items. The existing desirable visual connection between the conservation area and the subject site (with its garden setting and rooftop terracotta capping) will be lost, replaced instead with stark visual connection to an overbearing residential flat building. Consistent with Mr Zandaro's opinion, and with the benefit of a view, the Could would readily conclude that there will in fact be not only an adverse impact, but significantly so to the amenity of the surrounding area, including a conservation area. The foregoing also being relevant to consideration under s 4.15(1)(b)-(c) of the EP&A Act."