Joyce v Ku-Ring-Gai Council

This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (EP&A Act) against the deemed determination of the Council refusing development consent to a development application to develop land known as No 37 Burns Road, Wahroonga being lots 15 and 16 Deposited Plan 2943 (the appeal site) by housing for older people or people with a disability pursuant to State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP No 5).

The appeal site since 1989 has been identified as a heritage item in terms of the Ku-Ring-Gai Planning Scheme Ordinance (the LEP). It comprises two separate lots, with a combined site area of 9510 m2. The site is square in shape and is bounded to the north by Burns Road and is bounded to the west by Cleveland Street. Craignairn" is sited in the middle (highest level) of the property and is serviced by a formal vehicular driveway from Burns Road and another driveway from Cleveland Street. The site is densely landscaped close to the street frontage, particularly along the western side of the site along Cleveland Street where there is remnant forest area. The garden to the front, rear and along the eastern side of the house opens up to more expansive lawn areas. There are limited views of the residence available from Cleveland Street, with broader views available from Burns Road.

"Craignairn" was constructed in 1908-09 and was reconstructed in 1937, following a fire, to virtually its original configuration and appearance. It is a substantial Inter-War period mansion designed in the Federation Arts and Crafts style. It was designed by a key practitioner of the period, Howard Joseland, who designed a number of houses in the area, including his own house at 41 Burns Road. There are several heritage-listed houses in the vicinity of "Craignairn", including Nos 34, 36A, 36B, 38, 40-42, 44, 41-43, 47, 49-51 and 53 Burns Road.

The development application, in its original form proposed a total of 21 dwellings comprising 4 x 1 bedroom units to be created by the conversion of the existing dwelling "Craignairn" (which is erected in the middle of the two lots comprising the appeal site, straddling the common boundary between the lots) and 17 x 2 bedroom dwellings to be housed in five separate buildings clustered around "Craignairn" at the rear, and to both sides, of "Craignairn". It also proposed to establish a swimming pool and BBQ area on the northern sector of the site on the Burns Road frontage, which otherwise would be undeveloped except by existing lawns and gardens. That sector comprises about one third of the overall area of the appeal site.

Subsequent to the commencement of these proceedings the Council determined the application. Notice of the Council's determination of the original development application was given on 2 April 2001 and stated 11 reasons for its determination which emphasised the adverse impact of the proposal upon the heritage significance of "Craignairn" and the discordant intrusion of the multi-dwelling proposal into the prevailing streetscape and residential character of the neighbourhood.

Thereafter, the Applicant's heritage consultants reduced the scale and intensity of those components of the development proposal that flanked "Craignairn" resulting in an amended proposal containing a total of 17 dwellings rather than the original 21 with the two flanking buildings (buildings A and E) being relocated further south on the appeal site (set back up to 10 m from their original positions) thereby exposing more of the eastern and western sides of "Craignairn". A copy of the site plan of the amended development is annexed hereto and marked "A".

The Council, upon receipt of the amended proposal, re-advertised it and received additional objections from residents of the Wahroonga neighbourhood. (In all some 270 written objections were received by the Council to its public advertising of the original and amended proposals.)

However, the Council did not re-determine the amended proposal, no doubt being content to rely upon its determination of the original development application, supplemented by its Amended Statement of Issues (which are a revision and elaboration of the reasons for the Council's refusal of the original development application) a copy of which Statement is annexed hereto and marked "B". On the hearing, Issues numbered 5, 8, 9, 11, 12 and 13 have not been pressed.

The Council has raised no objection to the Applicant relying upon the amended proposal and the appeal has proceeded in respect of the amended proposal.

Although the appeal concerns a proposal for a multi-housing development that is permissible pursuant to SEPP No 5 (which relevantly overrides the provisions of the LEP and would otherwise absolutely prohibit the proposed development), somewhat unusually for such a development, the hearing of the appeal has focussed by far the greatest attention on the impact of the proposal on the heritage significance of the appeal site and of the building "Craignairn"; with the great body of evidence, both expert and lay, addressing what I shall conveniently refer to as the "heritage implications" of the proposal.

Despite this central focus on heritage issues, the evidence has also included extensive town planning evidence, which although not contributing to the sharp debate on heritage issues, has examined the town planning consequences of the proposed development being necessarily constrained by some of the uncontentious outcomes in the heritage issues - namely the need for the retention of "Craignairn" with an appropriate heritage curtilage to the building. This commonly accepted outcome has resulted in approximately a one third of the site area (the northern sector) being left undeveloped with all of the proposed development being confined to the remaining two thirds of the appeal site and most especially concentrated along its southern boundary. Rightly, in my opinion, the town planning evidence has left to the heritage experts the hotly contested debate on heritage issues but has nonetheless significantly complemented that evidence by concentrating on the consequences of the heritage constraints for new development on the appeal site necessarily created by the Applicant's recognition of the legitimacy of retaining the integrity of "Craignairn" in its appropriate setting. (I should at once say that the Council's heritage experts do not accept the sufficiency of the heritage curtilage that is proposed by the development. In particular, they criticise the impacts of the flanking development and the backdrop development to "Craignairn".)

The source of relevance of the heritage implications that arise in the case is principally to be found in the heritage provisions of the LEP pertaining to "heritage items" (defined by the LEP as "a building, work, relic tree or place of heritage significance to the Municipality of Ku-ring-Gai…..(that is) described in Schedule 7"). In particular, cl 61D(2) requires consideration of "the extent to which the carrying out of the proposed development would affect the heritage significance of the item and any stylistic or horticultural features of its setting".

This source of relevance is supplemented by the enumeration by cl 25 of SEPP No 5 of "design principles" applicable to housing development permissible under that Policy, which principles includes the following: (a) Neighbourhood amenity and streetscape: The proposed development should: (ii) where possible, retain, compliment and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan.

The combined operation of these provisions is that a SEPP No 5 development may be carried out on land comprising, or in the vicinity of, a conservation area or heritage item identified by an environmental planning instrument, but that in exercising the relevant planning discretion, the determination of a development application made under SEPP No 5, by the consent authority must consider the impact of the proposed development on the heritage significance of the heritage item (cl 61D(2) of the LEP) and where possible, retain, complement and sensitively harmonise with any relevant conservation areas and heritage items (cl 25(a)(ii) of SEPP No 5).

The competing cases advanced by the parties (supported by an abundance of expert evidence) concerning the heritage implications of the proposed development are that the Council contends that the proposal adversely impacts upon the heritage significance of "Craignairn" whereas the Applicant contends that the proposal will have an acceptable limited impact upon the heritage significance of "Craignairn".

In advancing these competing cases, the parties commonly acknowledge the heritage significance of "Craignairn" but there is a continuing difference of opinion concerning the rank, level or status of that heritage significance inasmuch as the Council's experts contend that "Craignairn" is of "State" heritage significance whereas the Applicant's experts contend that it is of "local" heritage significance. Official recognition of heritage significance at local and State levels is attainable under the Heritage Act 1977, and the contemporary backdrop to the processing of the Applicant's development application has been the Council's ongoing attempts to have the Heritage Council of New South Wales list "Craignairn" in the State Heritage Register maintained pursuant to the Heritage Act 1977.

To be so listed, the Minister, acting on the recommendations of the Heritage Council, must consider the heritage item to be of "State heritage significance': vide the Heritage Act, s 32. That Act defines "State heritage significance" and "local heritage significance": vide s 4A and recognises the possibility that a particular item may have both State heritage significance and local heritage significance.

The Heritage Council is required to publish the "criteria" that it uses for deciding whether or not an item is of "State heritage significance": vide s 4A(3).

It is not, however, necessary for the Court in these proceedings to determine the rank or level or status of the heritage significance of "Craignairn" because of its commonly acknowledged high ranking significance, at least in the local context. Nor would it be appropriate, in any event, for the Court to express its opinion on a matter that the Heritage Act leaves to the responsible Minister acting on the advice of the Heritage Council.

Moreover, the evidence adduced at the hearing indicates that the Heritage Council has previously advised the Council that it does not intend to list "Craignairn" on the State Heritage Register. In confirming this decision in its letter to the Council dated 10 September 2001, the NSW Heritage Office offered the following advice to the Council on the Applicant's amended development application: While the current proposal takes into account some of the heritage issues involved, it changes the way the property is viewed as a heritage item from Burns Road and Cleveland Street. Developing the sides and rear of the site in this manner changes the character of the site and the surrounding streetscape. The cumulative effect of the new buildings dominate and take away from the original house and its setting. The proposed development is quite large and will make a large impact on the site including the setting of the heritage house. The new development is therefore considered to be too large and the siting of the buildings needs further consideration. The Heritage Office therefore provides the following advice to Ku-Ring-Gai Council in relation to the modified proposal as described in DA01 Issue E and DA04 Issue E: · The development of the property as proposed in DA 1377/00/DS at 37 Burns Road, Wahroonga, is considered to have a negative impact on the heritage item and on the surrounding conservation area. Although the front of the site has been left open the new buildings around the historic house in the centre are still considered to make the site too crowded and overdeveloped in comparison with the existing development in the surrounding neighbourhood; · An appropriate curtilage for the existing house and a suitable location, massing and scale for any new development on the site should take into account the views to the house from Burns Road and Cleveland Street. New development on the site should therefore be restricted to the area to the rear of the existing house and should provide a visual buffer between the historic house and the new development.

The written advice to the Council from the National Trust on the proposed development was more trenchantly critical when it stated: It is essential to provide an appropriate curtilage and protection for the identified heritage item. The National Trust opposes the proposal for reasons mentioned where it considers that the development proposal is unrealistic and totally unsuitable for the site.

I mention at the outset these opinions of the two public heritage/conservation authorities having a jurisdiction travelling well beyond "local" heritage parameters to indicate that the heritage significance of the present case is widely perceived and based.

Of course I accept the Applicant's submission that the weight to be given to these expressions of adverse opinion on the proposed development must be evaluated in the light of the fact that neither the Heritage Council nor the National Trust participated directly in the proceedings, nor did representatives of those bodies enter the witness box. I also accept the Applicant's submission that these bodies were doubtless strenuously lobbied for their support by a vocal and voluminous local resident population which was strongly opposed to the proposed development.

However, these perfectly proper submissions come via a double edged sword because the responses from these two public conservation authorities and the massive local opposition to the proposal do powerfully attest to the perceived heritage significance of "Craignairn" and the heritage and public interest implications of the proposed development.

Moreover, the criticisms of the proposed development made on behalf of the Heritage Council and the National Trust were very powerfully corroborated and elaborated upon by the testimony of four distinguished heritage/conservation experts called in the Council's case, Mr Logan, Mr Moore, Mr Patch and Ms Morris, although the Applicant's competing case was likewise impressively supported by the expert evidence of Mr Staas, Mr Brooks and Dr Lamb, also distinguished heritage/conservation experts (Mr Staas was the author of the Conservation Plan prepared in respect of "Craignairn").

All of these highly experienced heritage/conservation experts expressed their opinions in eloquent, robust yet reasoned style. Yet they (ie the Council's experts collectively and the Applicant's experts collectively) were totally opposed to one another on the impact of the proposed development on the heritage significance of "Craignairn". Their differences of opinion also evinced very fundamental differences in philosophical approaches to conservation goals and outcomes.

Ultimately, I have come to the conclusion that the proposed development would have an unacceptable and adverse affectation on the heritage significance of "Craignairn" particularly in its setting and its overall relationship to its site. In so concluding, I have been more persuaded by the Council's experts than by the Applicant's experts, distinguished and impressive though all of their competing opinions were. Notwithstanding the relative counterpoise in my overall evaluation of the heritage evidence, a conclusion on the evidence must be made and I have concluded that the massing of five buildings (A, B, C, D and E as shown on the site plan annexed hereto) clustered on both flanks and to the rear of "Craignairn" is far too intensive and dominates and hems in or cramps the heritage building and substantially deprives it of its significant relationship with its site, which obviously contributes to the overall significance of the heritage item.

In leaving my evaluation of the heritage issues, I note that in addition to the plethora of expert evidence, I had the considerable assistance of a view with the parties and their experts that encompassed "Craignairn" and its immediate neighbouring properties and the whole of the block bounded by Burns Road, Eastern Road, Water Street and Cleveland Street.

This conclusion on the heritage issues leads me to my evaluation of the town planning evidence.

Here the Council witnesses Mr Winnacott and Mr Grech expressed the same opinion that the proposed multi-housing development was out of character with the prevailing form of development in this prestigious residential area of Wahroonga (originally developed in the late 19th Century as the Wahroonga Heights Estate) and in particular would have a discordant impact on the Cleveland Street streetscape of the appeal site, not only because of the very limited set backs from the street frontage of buildings A and B compared with the far more generous set backs to the Cleveland Street properties on the eastern side of the street, in the block bounded by Burns Road in the north and Waters Street in the south, but also by virtue of the proposed underground carpark servicing all of the proposed developments feeding directly onto Cleveland Street. Both planners considered that the concentration of the new development extending almost the full width of the lot and occupying almost all of the most southern one third sector of the appeal site was inimical by virtue of its form and massing to the character and amenity of adjoining residences located to the south and east of the appeal site (the owners of which three properties had opposed this particular impact of the proposal in their testimony).

I accept these criticisms of these features of the proposed new development, which in large measure are an unavoidable consequence of the constraint created by the Applicant's solution of providing as the heritage curtilage to "Craignairn", the undeveloped northern one third sector of the appeal site (ie the Burns Road frontage).

That the provision of an appropriate heritage curtilage to "Craignairn' was a constraint on the development of the appeal site was recognised early in the piece and was so recognised in the Applicant's "Site Analysis" plan that accompanied her original development application as required by cl 24 of SEPP No 5.

There were other discrete criticisms made by the Council's town planning witnesses of the proposed development in terms of the requirements of SEPP No 5 in respect of (i) wheelchair access; (ii) private open space; and (iii) height of one small feature of the proposed development. However, it is not necessary for me to adjudicate upon these matters because of their relatively minor import compared with my overall conclusions that the proposed development (i) is out of character with the prevailing development in the area; (ii) has an adverse impact on the streetscape of Cleveland Street; and (iii) has an adverse impact on the amenity of neighbouring residences on the southern and eastern boundaries of the appeal site.

It must be appreciated that my findings on the town planning evidence would apply independently of my findings on the heritage implications of the proposed development.

However, when my findings on the heritage implications, and on the town planning impacts of the proposed development are combined, the degree of unacceptability and unsuitability of the proposed development for the appeal site (being a heritage item under the LEP), rise to a level of cumulative cogency.

When I next factor into my overall evaluation of the merits of the proposed development as required by s 79C of the EP&A Act , the massive element of local opposition raised against it (including the fact that a number of expert witnesses called in the Council's case had been commissioned by the Wahroonga Conservation Fund, a non-political association of local residents having the objective of conserving the character and amenity of the Wahroonga locality), my evaluation of the proposed development rises to the level of being overwhelmingly unfavourable.

Although the residents' opposition chiefly focussed upon the local community's appreciation of the high heritage value of "Craignairn" and its contribution to the high conservation value of this part of Wahroonga, and their apprehension that the proposed development would adversely impact upon this heritage value, it also expressed blanket opposition to SEPP No 5 development on the appeal site. In the circumstances of this case, I have not found it necessary to adjudicate upon the force of any blanket opposition to SEPP No 5.

For all of the foregoing reasons, I have concluded that development consent must be refused.

However, before leaving the case, I think that in deference to the Applicant's position in this litigation, I should record that her case was supported by very impressive expert testimony and that she has acted with the highest sense of responsibility towards "Craignairn" and its obvious heritage status notwithstanding the considerable antagonism of the local population that her proposal has engendered. She is a granddaughter of the original owners (Mr and Mrs Strang) and has enjoyed a very long association with "Craignairn". I accept entirely her apparent belief that her proposed development would simultaneously facilitate the conservation of "Craingnairn" and fill a perceived need for other residents in Wahroonga to have access to SEPP No 5 housing in Wahroonga on the appeal site and thus directly enjoy "Craignairn" for themselves.

I have some natural sympathy for her, as she appears to have borne the brunt of a fierce local reaction against her intentions to develop the appeal site, while appropriately respecting the heritage significance of "Craignairn", according to her own lights, assisted by her eminent heritage advisors.

I can also sympathise with her in the seemingly enormous task of maintaining such a prestigious building situate in such capacious grounds (in circumstances where both "Craignairn" and its grounds bear the clear signs of some neglect). The area of the appeal site of 9,500 m2 is 10 times larger than the prescribed minimum lot size for residential lots in Ku-Ring-Gai and is considerably larger than the prevailing lot sizes in this prestigious part of the Wahroonga suburb. Prima facie, the appeal site is far too large to house only a single residence and is obviously capable of accommodating a higher density of residential development.

The financial imposts faced by an ordinary citizen such as the Applicant with the responsibility for a heritage item such as "Craignairn" must be considerable, although discreetly, no such direct evidence was adduced in the Applicant's case.

Nonetheless, her expert advisors were clearly right to draw attention to the obvious assumed difficulties of the Applicant in properly maintaining such a grand property and their evidence supporting the development proposal appeared to essentially emanate from that starting point (more as a reasonable assumption, than a fact proved by evidence which could only have come from the Applicant herself). This assumption inevitably led the Council's expert witnesses and the lay witnesses to express opinions on alternative forms of development for the appeal site that would be more respectful of the heritage significance of "Craignairn" but nonetheless provide appropriate financial returns to the Applicant in order to properly maintain "Craignairn", and realise on her asset.

In this respect, it is important that I record that the Council's witnesses indicated a decided preference for the creation of two additional residential lots in the southern sector of the appeal site, ie entirely standing free of "Craignairn", leaving the bulk of the site as the curtilage to "Craignairn".

These concessions were, in my opinion, properly made by the Council's witnesses, even though it is obvious that the most desirable heritage/conservation outcome would be for "Craignairn" to be conserved with its whole setting (curtilage or site) intact, with both building and gardens being restored to their former glory. Short of attaining this ideal (and it was not suggested that the Applicant should or could bear responsibility for attaining that ideal) some form of further development potential inherent in the appeal site should reasonably be allowed to be realised, if that it the necessity of the situation.

Although the Applicant's heritage experts contended for the proposed development as offering a preferable "development outcome" for the appeal site respecting the heritage significance of "Craignairn", I would prefer the two lot subdivision solution of the southern sector of the appeal site that was conceded and preferred by most of the Applicant's heritage experts. Their lack of unanimity of this issue and on the separate issue of converting "Craignairn" into four units, did not, in my evaluation of the evidence, weaken the Council's case against the proposal or confound the overall integrity and thrust of the expert evidence adduced by the Council.

For all the foregoing reasons, I make the following orders:

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