Jacka v Ku-ring-gai Council

Land and Environment Court (NSW)|2015-05-04|Before: Pepper J

Solicitors: Hall & Wilcox Lawyers (applicant) HWL Ebsworth Lawyers (respondent) File Number(s): 10815 of 2014

JUDGMENT

COMMISSIONERS: The applicant, Mr Gary Jacka appeals against the deemed refusal by Ku- ring- gai Council of a development application numbered 239/14 (DA) for subdivision of two lots into three lots and associated works on the property known as 28 Burns Road Wahroonga( the land). The existing lots are lot 1 in DP 972462 which is 15.204m wide and 58.665 m deep, comprising 894 m², and Lot 1 in DP 970015 which is 54.86 m wide and 58.665 m deep comprising 3,218 m².
At the time the development application was lodged the land was zoned Residential 2 (C 2) under Ku -ring- gai Planning Scheme Ordinance (KPSO), and a new draft local environmental plan in the standard instrument format had been publicly exhibited. The latter provided for the repeal of the whole of KPSO so far as it affected the land. On 2 April, 2015 the new instrument commenced and became Ku ring gai Local Environmental Plan 2015 (LEP 2015). Ku-ring gai Development Control Plan 2015 ( DCP 2015) commenced at the same time.

Proposed development

The development application seeks development consent not only for the subdivision but also for:

partial demolition of the existing dwelling on the land (referred to as "the western wing")
demolition of the existing garage and carport and the remains of a tennis court
partial demolition of the the existing stone front fence
construction of new footpath crossings and lay backs for proposed lots 1, 2 (shared) and 3
construction of a new hard stand parking area for lot 2 behind the existing house
removal of some of the existing vegetation including dead or dying trees.

With the leave of the Court the plans of the proposed subdivision as lodged with the council was amended after the commencement of the proceedings. The final iteration of the plan was received as exhibit M. Proposed Lot 1 on the western side of the land has a frontage of 18m ,a depth of 58.665 m, and an area of 1058 m², proposed Lot 2 has a frontage of 18.8 m and Lot 3 has a frontage of 18 m, a depth of 59.015 m, and an area of 1021 m². The existing brick dwelling house straddles the existing and proposed boundary between lot 1 and lot 2. The proposed demolition of the western wing will also involve the making good of the western side of the dwelling and will ensure that it will be situated entirely on lot 2.
The heritage experts Ms R. Conroy for the respondent and Mr R. Staas for the applicant agreed that the western wing was a later addition to the original Federation style dwelling. The western wing does not match the form of a similar original element on the eastern side of the dwelling. The western wing is wider, and its façade contains windows which differ from the fenestration on the eastern façade and its floor level differs from that of the original house .
Access to proposed Lot 1 is to be via a new driveway and footpath crossing to be shared with Lot 2. An indicative shared driveway location and building footprint for proposed Lots 1 and 2 is illustrated on exhibit M. In lieu of the former garage and carport used by the existing dwelling, a new car space hardstand area is indicated for lot 2 at the rear of the existing dwelling. Lot 3 is situated to the east of the existing dwelling and contains the remnants of the fencing and net posts of the tennis court. It is proposed to be accessed by a new footpath crossing and an indicative driveway set out on exhibit M. An indicative building footprint for a future dwelling on each of lots 1 and 3 is also shown.
An extensive view of the land and it's context as well as a large part of the surrounding HCA was undertaken by the Court in the presence of the parties and their expert witnesses on the first day of the hearing.

Contentions

The contentions raised in the Council's Amended statement of facts and contentions include : 1. Unacceptable impact on the streetscape of Burns Road and heritage values of the Conservation Area. 2. Unacceptable impact on the existing dwelling. 3. Unacceptable heritage impacts to the stone front fence. 4. Inadequate side setbacks to the existing dwelling. 5. Inadequate side setbacks for the building footprints contrary to Ku-ring-gai Development Control Plan 38. These contentions involved a consideration of impacts on the heritage significance of the HCA.
Four other contentions relate to impacts on certain trees . Following joint conferencing the arboricultural experts agreed to the trees that could be removed because they were dead dying or were weed species .They also agreed on conditions of consent for work in the vicinity of the tree roots. A further three contentions relating to stormwater drainage, the proposed landscape plan, fencing, driveway design, and vehicular street crossings were able to be dealt with by conditions.

Heritage issues.

Despite several heritage studies of the area the first recognition of the land in statutory controls relating to heritage matters appeared in KPSO on 5/7/2013 with the identification of Wahroonga Heritage Conservation Area "C1" (HCA): see schedule 7 Part 3 of KPSO.The subject property is not itself a heritage item and it is not in the immediate vicinity of any heritage item.
The Council adopted the following statement of heritage significance for the HCA: Wahroonga Heritage Conservation area is of heritage significance for its distinctive residential streetscapes which evidence the transformation of early subdivisions of the 1890s into the later rectilinear grid lot street and lot pattern of later subdivisions including the Wahroonga Heights estate. The area contains a significant collection of grand residences from the Federation and the Inter-war periods, built following the opening of the North Shore railway line in 1890, many of these the residences of prominent families of this period, and often designed by prominent architects, for example the 1894 Ewan House (formerly Innisfail) designed by architect Herbert Wardell for John Thomas Toohey , and 11 houses designed by the architect Howard Joseland. The western end of Burns Road and western side of Coonanbarra Road are representative streetscapes of intact more modest Federation period houses. The through-block pathways and formal avenues of street trees within the area (in Burns Road, Water Street and Coonanbarra Road) along with the formal landscaping of Wahroonga Park and its distinctive John Sulman-designed shops in Coonanbarra Road facing the park, are a tribute to the work of the Wahroonga Progress Association in the early 20th century (which included Sulman as a member), and have resulted in a high quality and distinctive residential landscape.
The present development application was supported by a Heritage Impact Statement prepared by Mr Staas based on the 2002 guidelines set out by the heritage branch of the Department of Environment and Heritage. The Heritage Impact Assessment concluded that the proposed works to re-subdivide the site did not adversely affect the role of the place as a contributing element in the surrounding conservation area stock, that the proposed demolition would not affect the earlier form or character of the original house, and that the future location and design of new houses on the lots can achieve a compatible character in accordance with the design guidelines set down by the Council for these areas. He recommended the heritage aspects of the application be approved.
The parties' heritage experts prepared a joint statement of evidence and during the hearing Mr Staas tendered a photographic study of some of the existing development within the HCA as well as giving oral evidence in response to the oral evidence and cross-examination of Ms Conroy. Mr Staas re-iterated his views as expressed in the Heritage Impact Statement that the proposal maintains a characteristic subdivision pattern in the HCA that is compatible with the character of the surrounding conservation area and which maintains the substantial landscape setback of the existing lot as part of the setting of the retained modified early 20th-century house on the land. He also considered that the proposal retains the contributory character of the stone front fence and the massed planting across the site frontage. The reconstructed form of the existing house was considered to be more characteristic of the early design character of the site as a result of the removal of the later western additions. He also stated that the building platforms were sufficient to allow for complementary residential development to be erected in accordance with the Council's planning controls for the area.
Overall the development proposed will result in the retention of the existing house on the land consistently with its original form, retention of the bulk of the stone wall at the street front as well as retaining the substantially intact landscaped area between the dwelling and the front boundary. Appropriate trees including street trees will be retained except for those agreed by the arborists and the council to be suitable for removal. These are the subject of proposed agreed conditions of consent. The engineers have agreed on appropriate site drainage for the three lots such that it will not disturb the existing trees worthy of retention or their root systems. It appears to us that the result of the carrying out of the proposal overall will preserve the landscaped quality of the land and tree-lined streetscape.
The heritage experts accepted that the new controls in the 2015 LEP and the 2015 DCP should be considered to be imminent and certain and relevant to the future infill development anticipated by the indicative building footprints in the final amended subdivision plan.
Ms Conroy's written and oral evidence made particular reference to various aspects of the proposed development which she considered would adversely affect heritage significance. Ms Conroy expressed concern for the streetscape effects of the landscaping changes, the removal of the western wing, and the removal of "significant sections" of the stone front wall. As to the wall, it has a total length including the existing entry gates of 54.8 m. Two new driveway entries are proposed to be opened. One of them is 4 m wide and the other about 4.5 m wide. A projecting stone in the wall was identified by Ms Conroy as a rare rural stile. This element will be unaltered. The removal of a total of 8.5 m of the wall in two locations represents about 15% of the existing wall.

Controls in heritage conservation areas

Clause 61D of KPSO requires development consent for the proposed subdivision and ancillary works. Clause 61D (4) requires consideration of the effect on the heritage significance of the conservation area concerned. The phrase "heritage significance" is defined in KPSO to mean the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value. Part 3A, Division III, clause 25C contains the aims and objectives of Part 3A with respect to the heritage qualities of Ku-ring-gai. In particular, clause 25D (1) provides that consent must not be granted to any development of land to which part 3A applies unless the consent authority has had regard to the objectives for residential zones set out in the clause. There are 19 listed objectives. It was accepted in final submissions that the proposal and the evidence in the case had addressed those of the listed objectives for residential zones set out in the clause which are relevant to the present proposal.
Clause 25H of KPSO contains provisions relating to subdivision in residential zones. The clause sets out minimum lot areas and minimum street lot frontages with this that provide for development to occur in a garden setting by substantial setbacks to enable long-term sustainability of trees and to provide for substantial common landscaped areas to encourage good streetscape quality and areas of trees for each development. The proposal complies with the minimum lot area requirements. Subclause 25H (4) sets out the minimum street frontage for subdivisional lots. Relevantly, for dwelling houses the minimum street frontage is 18 m and the proposal complies with this requirement.
Ku-ring-gai Development Control Plan No 38 (DCP 38), which was in force at all material times complements the statutory requirements of KPSO. There are setback, landscape and other requirements in DCP 38 as well as provisions dealing with driveways, access and the like.
Under the Draft 2015 LEP clause 2.3 provides that the consent authority must have regard to the objectives for development in the relevant zone when determining a development application. The land falls within R2 Low-density Residential Zone the objectives of which include provision for the housing needs of the community within a low density residential environment and to provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai. Clause 4.1 deals with minimum subdivision lot sizes. As before, in the R2 low-density residential zone each lot is to have a width of at least 18 m along a line that is 12 m from the street frontage of the lot. The proposal complies with this requirement. Clause 5.10 deals with heritage conservation. It provides for development consent for the present proposal and for future development on lots to be created .Subclause 5.10 (4) provides that 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 concerned. DCP 2015 contains more detailed provision for the purposes of development pursuant to the Draft 2015 LEP.
There was no suggestion that section 80 (2) of the Environmental Planning and Assessment Act 1979 (the Act) would be engaged by the proposed subdivision, which is to say that if the subdivision was carried out it would not result in a contravention of the Act, an environmental planning instrument or the Regulations made under the Act whether in relation to that or any other development.

Consideration of Contentions

The first contention encompasses two issues. One is the impact of the proposal on the streetscape of Burns Road. The other is the impact on the heritage value of streetscape in the HCA.The visual appreciation of the streetscape was analysed by the heritage experts. In his evidence in reply Mr. Staas stated: the visual appreciation of streetscape character is the defining appeal of the area for members of the wider community… .
The tree-lined character of the street will remain. In the proposed conditions of consent two trees in the nature strip are to be removed to permit vehicular access. It was not suggested that this would significantly alter the perception of Burns Road as a street with many mature native trees.
As to the land itself, the aboricultural experts agreed that there are 34 trees on the site, of which 25 trees will be retained and of the 9 trees proposed to be removed, 6 were recommended for removal in any case because they were dead, dying, or weed species. The Conditions of Consent include specific conditions designed to preserve the trees that are to remain and to retain the native vegetation. The final conditions allow the removal of only 8 trees, 6 of which were dead, dying or weed species. Offsetting the loss of the 2 other trees is the new planting which is to occur under the landscaping plan including the amendments to it required by the Council. This will bring about the preservation of the existing character of the gardens with new plantings which will improve the streetscape of Burns Road. Screen planting is included which will tend to screen areas within lots 1 and 3 likely to be used for parking of cars.
In our opinion, these measures will maintain the characteristic landscaped quality of the subject site and the adjoining area. We do not consider the impact to be unacceptable. As to the second aspect of the contention we do not consider that the heritage values of streetscape in the HCA itself will be materially altered.
Accordingly, the first contention is rejected.
The second contention relies on impact on the existing dwelling. The demolition of the western wing is supported by the evidence of Mr. Staas. For the reasons given in paragraphs 6 and 7 above, we consider that the original Federation period house is more significant than its mismatched later altered form. The dwelling in its original form will continue to contribute to the streetscape and to the heritage significance of the HCA. We do not consider that the alteration will detract from the heritage significance of the HCA but that it is likely to enhance it. The remnants of the disused tennis court on the land and the garage and carport at the rear of the land make a very small contribution to the HCA. Tennis courts are evident on several other properties within the HCA, and could be established or re-established on many other properties within the HCA.
The third contention claims unacceptable impacts on the stone front fence. As explained in paragraph 18 above, the greater part of the stone front fence will remain and the conditions require that any damage to the remaining wall after the demolition for the driveways is to be made good by an experienced approved stonemason using original stone and jointing methods. We accept Mr. Staas' evidence that the linear quality of the wall will be retained. He also stated that the changes to the front fence will not remove the ability to interpret the original extent of the property and will not have a substantial impact on the streetscape. Applying the test of impact on the heritage significance of the HCA (as a whole or even locally), that is to say, the impact on the identified significance of the conservation area, we do not consider that the changes to the fence are unacceptable. Accordingly, the third contention is rejected.
The Fourth contention claims inadequate side setbacks to the existing dwelling. Reference is made to clause 4.1.3 of DCP 38, which requires a minimum setback for single storey dwellings on a lot which is less than 20m wide. The clause seeks to allow sufficient room for a pathway and at least 600mm of landscaping. The subdivision plan as amended by leave during the hearing shows the eastern wall of the existing single storey dwelling to be 2m from the proposed boundary with lot 3. The indicative building footprint on lot 3 shows the eastern side setback of the footprint is 1.5m from the proposed common boundary. Clause 4.1.3 indicates a required distance from a side boundary of 1.5m. The premise of non-compliance with the numerical requirements does not hold true for the finally amended subdivision plan. Also, the existing dwelling's setback to the east is greater than required and fulfills the objectives of the control.
There is therefore no longer any basis for the fourth contention.
The Fifth contention claims inadequate side setback of the indicative building footprint. The Draft 2015 LEP requires development consent for any dwelling on lots 1 and 3 and it cannot be assumed that inadequate setbacks would be permitted on those lots. There is ample scope to design a permissible dwelling to fit within the indicative footprint and comply with the 2015 controls. In this regard clause 5.10 of the Draft 2015 LEP requires development consent for the various elements of the proposal and in particular for erecting a building on land that is within a heritage conservation area. Sub-clause 5.10(4) provides that "the consent authority must before granting consent consider the effect of the proposed development on the heritage significance of the [heritage conservation] area concerned".
The aims of the 2015 DCP include "ensuring the heritage significance of [HCAs] is conserved, and encourage development which respects that significance". Part 20 of the 2015 DCP deals with Heritage Conservation Areas. In particular clause 20.1 provides that the scale and massing of new buildings is to be integrated into the established character of the HCA and respect the scale, form and character of adjacent or nearby development, to be informed by the style, form, setbacks, materials and vistas in the HCA, façade treatment, roof forms and design detail. It also acknowledges that new buildings may be contemporary in design. Acceptable two-storey dwellings are to be designed to have upper levels within the roof and be in keeping with the height, mass and proportions of contributory buildings in the vicinity.
New gardens are to be horticulturally and stylistically sympathetic to the period of the HCA. Hedges and plant species are also given particular attention.
Provisions such as these are designed to ensure that the consent authority's attention is drawn to the detail of new dwellings so that they will enhance the heritage significance of the HCA.
These provisions also indicate that the Council has power to control future dwellings on lots 1 and 3 so that they themselves become contributory development with the HCA. It is reasonable then to treat the likely future dwellings that may be allowed on lots 1 and 3 by the Council or the Court on appeal as not only preserving but also enhancing the heritage significance of the HCA as a whole.
The fifth contention is therefore also rejected.

Conclusion and Orders

We are satisfied that the heritage significance of the HCA will not be materially affected by the proposed subdivision and associated development. It is therefore appropriate to grant development consent subject to the agreed conditions.
The Orders of the Court are: 1. The appeal is upheld 2. Development application No 239/14 for subdivision, partial demolition of dwelling and stone front fence, demolition of garage, carport and tennis court and vegetation removal at 28 Burns Road Wahroonga is granted development consent subject to the conditions in Annexure "A" 3. Exhibits except exhibit M may be returned. ……………. G T Brown Commissioner of the Court ……………. J. Maston Acting Commissioner of the Court 10815 of 2014 Brown & Maston (C)_amended (825 KB, pdf)

Amendments 27 July 2015 - Amended conditions & orders. 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: 27 July 2015

(2003) 129 LGERA 195

(2004) 138 LGERA 237

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Judgment (9 paragraphs)

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Cases Cited (5)