Jackson Teece Architecture v Newcastle CC

Land and Environment Court (NSW)|2005-03-30|Before: Sugarman J

Background. 1 This appeal was lodged against council's refusal of the development application for alterations and additions to an existing residential dwelling, construction of a two-storey weatherboard dwelling and subdivision of the existing allotment into two new allotments, at 45 Turnbull Street, Merewether.

2 The site is situated on the south-eastern corner of National Park Street and Turnbull St and has frontages of 14.63 m. to Turnbull St and 37.82 metres to National Park Street. It has a total area of 553.3 sq m.

3 The proposal involves renovations and additions to the existing dwelling, involving the provision of the first floor loft, within the roof space and an attached single garage facing National Park Street.

4 A second detached three-bedroom dwelling is proposed to be erected at the rear of this existing dwelling and having frontage to National Park Street. It has a setback between 3.75 metres and 4 metres from the street alignment (western boundary). This proposed second dwelling includes a first floor loft with an attached single garage on the southern side, facing National Park Street with a 900 mm setback from the rear (southern) boundary.

5 The subdivision of the property is for the existing house to remain on the corner lot within an area of 295.5 square metres and the new lot having a total frontage of 17.62 metres to National Park St and an area of 257.8 square metres.

6 The property is situated within the Hamilton South "Garden Suburb Heritage " Conservation Area. Accordingly the main issues argued at the appeal concern the impact of the proposal on this conservation area. In order to address the outstanding issues, the parties agreed to Mr S Booker (architect/heritage consultant) being the Court Appointed Expert (CAE) on architectural, conservation and heritage matters. From his assessment of the proposal, Mr Booker concludes that the proposal merits conditional consent and the parties now agree to consent orders.

7 Against this however, a significant number of resident objections have been made to the proposal. These objections cover a range of matters, which are summarised as follows: - conflict with the provisions of DCP 58 guidelines, including concerns regarding inconsistency with the existing subdivision pattern, the heritage status of the existing dwelling, the building line of the proposed dwelling, the scale of the proposed dwelling, proposed window and door proportions of each dwelling, front fence height, a lack of back yards to each of the dwellings and the lack of a front to veranda to the proposed dwelling; - lack of consistency with the character of the neighbourhood streetscape, particularly with respect to proposed to windows; - creation of precedent the development of corner blocks in the area; - overshadowing of the adjoining properties; - impact on privacy as a result of overlooking of the art area of adjoining premises by bedroom windows; - blocking a sea breezes; - traffic/parking problems due the corner position.

Planning controls. 8 The primary control is Newcastle Local Environmental Plan 2003, under which the site is zoned 2(a) Residential Zone and the proposal is permissible with consent. Clause 27 requires the consent authority to have regard to the extent to which the carrying out of development would affect the heritage significance of the Heritage Conservation Area . This requires consideration to a Heritage Impact Statement.

9 The site is also within the area covered by the Hunter Regional Environmental Plan 1989, although it does not have direct impacts for this proposal.

10 The following development control plans also apply: (a) Lower Hunter Urban Housing DCP, (b) DCP 29 - Single Dwelling and Dual Occupancy Code (c) DCP 58 - Hamilton South "Garden Suburb" Conservation Area. 11 The purposes of this DCP 58 include to: "Supplement the aims, objectives and other provisions of the Newcastle Local Environmental Plan 2003 with particular regard to Pt 4 Heritage Conservation".

12 This DCP states the following aims: - to conserve the heritage significance of the area; - to facilitate development that is compatible with the heritage significance of the area; and - to preserve features of the garden suburb design and layout that contribute to the areas character and heritage significance. 13 DCP 58 is to be read in conjunction with any other existing DCPs applying to the land to which the proposed development relates and in the event of any inconsistency with any other DCP, this DCP 58 shall prevail to the extent of any inconsistency.

14 Other planning instruments include: (a) Newcastle Urban Strategy, (b) Newcastle Subdivision Code.

The evidence. 15 In his report, Mr Booker has addressed the heritage significance aspects in order to assess the manner in which these values are being affected by any intervention or change. This heritage significance is based on the criteria of the New South Wales Heritage Office, relative to the details contained in Appendix A of the Hamilton South Garden Suburb DCP No. 58. From this, he refers to the multilayered heritage significance on historic, aesthetic, social and scientific levels.

16 In light of the sites corner position, Mr Booker examined whether there was any indication of a consistent design approach in the pattern of subdivision and found that "there is no established manner of arranging allotments around street intersections or corner blocks. Corner blocks are not particularly highlighted as visual anchors or strong landmark elements within the subdivision." 17 However Mr Booker says that a significant element that adds to the distinctive streetscape rhythm is the Garden setting which he describes as: - private yards are separated from the public domain by fences. Fences differ in design across the Conservation area, from north to south. Northern fences are generally brick dwarf walls punctuated by taller piers. An infill between piers of timber or metal palisade or picket is most common. In the south, picket fences of a range of various head designs are the prevailing type. Side fences are generally timber paling to a height ranging between 1500 millimetre to 1800mm above ground level. - the private front gardens, where they remain, add to the "public experience" of the Conservation Area, where street tree planting provides a framework within which the private garden domain contributes graded colour and texture, form, privacy and also strengthening the definition of a long vistas of our in the major streetscape avenues. - long vistas are a key feature along major streets and avenues, contributed to by the consistent set backs of buildings from the boundary alignment, the orientation of the house is and the presence of uniform single dwellings along the street frontage. - planting within the rear yards has a limited impact on the public domain impression of the garden setting. Street tree planting, fence alignment and design, private domain planting in and around front gardens, and the consistency of building setbacks are all of a higher ranking of importance in this regard.

18 In assessing the conservation of the heritage significance of the area, which is defined in Appendix A of DCP 58, Mr Booker refers to be Heritage Office and Department of Urban Affairs and Planning entitled Conservation Areas: Guidelines for Managing Changing Heritage Conservation Areas (1996). It advises that "a heritage conservation area is more than a collection of individual heritage items. It is an area and which the historical origins and relationships between the various elements create a sense of place that is worth keeping. … the least important characteristic is the "look" of the place, although the commonly held community view is that this is determining factor."

19 Accordingly Mr Booker considers that sensitive change can be accommodated so that the area is allowed to live and grow and not become frozen in a time warp. This means that urban consolidation initiatives can often be accommodated within conservation areas, while respecting the existing context through: - maintaining their historic subdivision pattern, - maintain the rhythm of the garden spaces in particular streets, - maintain driveway crossing patterns, - maintain building setbacks and - solutions that are aimed at minimising intrusion of incompatible building materials, building forms and details prevalent in the area. 20 With regard to the proposal, Mr Booker considers that the existing site, including its garden is in poor condition and that as the setback of the new building is consistent with that of other buildings to the south and provides garage and carport behind building line, so that there is articulation of the main facade and roofing elements, the development gains congruence with the existing development in the vicinity.

21 Furthermore, he considers that additional landscaping will enhance the streetscape and " that planting within rear yards has a limited impact on the public domain impression of the garden setting. There will be negligible impact on the presentation and landscape quality of the garden suburb through the minimal rear yards of the properties."

Conclusions. 22 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the objectors have raised legitimate concerns in this matter. Insofar as Mr Booker determined a balance between the various controls, which allow urban consolidation initiatives within this conservation area, I consider a higher priority should be given to the provisions of DCP 58, which prevails in the event of any inconsistencies. Accordingly I consider the following aspects of the DCP are relevant in this matter

23 Reference to DCP 58 confirms the various principles and guidelines that are to apply in this area. Presumably these are based on the details contained in Appendix A - the Statement of Heritage Significance (SHS) for this area. It states that the area was developed by the Australian Agricultural Company in the period 1913-1935, largely in keeping to a design by the eminent Australian planning and architectural firm known as Sulman and Hennessey. The dominant spatial structure consists of: - dwellings surrounded by open spaces( a feature of the Garden suburb movement), with clear and consistent front and side setbacks to dwelling; - a soft "edge" -- a subtle line of demarcation between open spaces ( the public domain) and gardens and ( private domain); and - a strong symmetrical and hierarchical pattern of the streets with the use of twist in direction to provide visual interest. Parkway, Gordon and Stewart Avenues are the obvious dominant feature streets.

24 With regard to the development pattern of the area, the SHS states ;

The house is seen within a garden setting that provides a very distinctive streetscape rhythm where the edge between the public and private is well-defined but where the private domain is very much part of the public experience.

… the front garden area is typically grassed with planning beds at the edges and a front fence demarcate is the division of public and private open space (usually approx 11-13 courses of brickwork with metal infill or timber pickets). Many gardens is maintain their original layout with mature plants. The gardens are a significant element of the original Garden suburb design.

25 By reference to the extract from Map 6 of LEP 2003 (Attachment 1), it appears to me that the subdivision pattern in this Garden Suburb is intact. Whilst Mr Booker says that there is no established manner in arranging allotments around street intersections or corner blocks, nevertheless the view confirmed that this original lot layout has facilitated a certain form of building development to occur and character to evolve.

26 This established form allows houses to be located within a surrounding landscaped setting, generally fronting the narrower street frontage and extend its "backyard" for the length of the longer boundary, which may then include a garage and extensive landscaping and higher boundary fencing. Consequently this results in an obvious separation of buildings where the houses have a garden setting, which in my assessment tends to reduce the development intensity at the street corners.

27 However, the proposal reverses this character, by intensifying development at the corner by increasing the bulk of the existing dwelling and introducing a new two-storey dwelling, within a minimal landscape setting. Insofar as the SHS refers to obvious dominant feature streets, I accept Mr Bookers observation " that corner blocks are not particularly highlighted as visual anchors or strong landmark elements within the subdivision". Accordingly it seems to me that this intensification of building, which in my opinion will tend to highlight this corner, is not consistent with the predominant character of other corner blocks in this conservation neighbourhood.

28 Insofar as the other controls allow for urban consolidation initiatives and flexibility to achieve current amenity requirements, it is apparent from the view that this has been achieved in this neighbourhood by way of sensitive extensions and alterations, which do not significantly intensify corner development and also a maintain the garden setting. Therefore I consider that the degree of intensification of building proposed is not consistent with the symmetry of the existing pattern of streets. This is notwithstanding that the dual occupancy code and subdivision code allows this form of development in certain circumstances.

29 In the current circumstances however, I accept that DCP 58 prevails and I note that within this conservation area, no subdivisions have been approved on corner allotments. Consequently the area is characterised by single houses on allotments are approximately 500 to 600 sq m. There are no small corner allotments in the order of 260 to 300 sq m, as proposed. Accordingly this proposal does not respect the historic subdivision pattern, which I consider is a negative aspect of the proposal.

30 In my assessment, the controls identify the garden area as a significant element in the Garden suburb design. But in this case, the location of the new common boundary necessitates the access driveway and garage for the existing house, to be adjacent to the boundary fence, eliminating appropriate opportunities for boundary planting. I consider this a negative feature of the proposal because it does not represent a garden setting. Also its private open space area is predominantly within the 4 m wide fenced courtyard adjacent to the street. This aspect is not common feature of this garden suburb setting, where private outdoor areas are mainly located to the rear or side of the property, to provide higher levels of privacy, utility and amenity.

31 Likewise, I do not consider that the new house proposal responds adequately to the garden setting context. Its rear and side boundaries mainly have 900mm setbacks, which severely limits perimeter planting, as required in a garden setting. Furthermore I consider the amenity of the outdoor areas are compromised, relative to the standard of amenity that currently exists because the rear courtyard has an area approximately 18 square metres, it is predominantly enclosed by the building walls, higher privacy screens and has a southerly aspect, which reduces its amenity.

32 Insofar as there is the alternative front private courtyard of 24 square metres, with northerly aspect, this area is shown to be paved. But to achieve reasonable privacy for this courtyard, it is proposed to be enclose it with a 1800mm picket fence, part the way along its street frontage. In my opinion, this does not reasonably accord with the more open front garden areas, that are a feature of this garden neighbourhood, where the predominant private outdoor open space area is not in the front setback area.

33 Another relevant issue raised by the objectors concerns the precedental effect of subdividing this corner allotment. A number of residents said that they owned similar corner allotments, and their expectation was that similar types of development and subdivision would follow, in the event of this proposals approval. Whilst every application must be considered its merits, nevertheless I think that further developments of a similar nature would severely undermine the predominant character of relatively low intensity corner allotments, in this conservation area.

34 The matter of precedence and consistency in decision making was considered by His Honour Mr Justice Lloyd in Goldin & Anor v The Minister for Transport Administering the Ports Corporations and Waterways Management Act 1995, Appeal Nos. 10190 and 10191 of 2001. He referred to the following submissions: 31. The authorities relied upon show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council, Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable".

In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent is readily invokable by prospective developers of other land in the vicinity is a valid consideration.

35 From this His Honour found that in the circumstances, taking into account the need for consistency in decision making and the fact that the approval of the application would be a precedent, then it was not an irrelevant consideration. By application of that principle to the current circumstances, it is matter of fact that there are many other similar corner allotments in this conservation neighbourhood, which have similar development/subdivision potential to the current proposal. As a number of these property owners have indicated their expectation that similar developments could be expected, I consider this possible outcome would have a significant detrimental effect on the Garden suburb character.

36 In summary, I consider that this proposal to significantly increase the residential building component on this corner allotment and subdivide is into two separate allotments is not compatible with the aims for development to be compatible with a heritage significance of the area. Furthermore I do not consider that this application pays sufficient attention to providing a significant garden element , which the aims of DCP 58 require in order to preserve features of the garden suburb design and layout that contribute to the areas character and heritage significance.

37 Insofar as my conclusion is different to Mr Bookers opinion, I acknowledge that various subjective judgments are required to the competing elements in order to resolve the matter. However, I give greater weight to the various heritage elements previously discussed. In this event I note the following principle set out by His Honour Mr Justice Talbot in PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41; 31 The Court has no way of knowing whether the criticism of the treatment of the façade would be a widely accepted professional view. Furthermore, the language and context of the DCP does not in my opinion mandate a design code which can be regarded as expressing a subjective specific detailed preference for the manner of presentation of development in the locality. Accordingly, unless the Court is convinced the changes proposed by the Court Appointed Expert are critical, as a matter of principle it is not obliged to accept them entirely. 38 Accordingly, I give greater weight to the objectors opinions that this proposal represents an overdevelopment of the site, it is visually intrusive, and does not maintain the distinctive streetscape rhythm, so that it is not sufficiently compatible with the heritage significance of the area. Therefore the application fails.

Court Orders 1. The appeal is dismissed . 2. Development application No.04/0929 for alterations and additions to the existing dwelling, and erection of a two-storey second detached dwelling and subsequent subdivision of one allotment in two allotments at No.45 (Lot 36 DP 326615) Turnbull Street, Merewether, is refused. 3. The exhibits may be returned except for 3, 4, 5 and 7.

      R Hussey
      Commissioner of the Court
      Ljr/rjs

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.

CITATION : Jackson Teece Architecture v Newcastle CC [2005] NSWLEC 129

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