Li v Ku-ring-gai Council

Land and Environment Court (NSW)|2023-02-24

Judgment

COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 following the deemed refusal by Ku-ring-gai Council (the Respondent) of development application DA0180/22 seeking consent for the demolition of an existing dwelling and construction of a new two-storey dwelling house, cabana, swimming pool and associated works at 12 Stuart Street, Wahroonga.
The appeal was listed for mandatory conciliation on 23 February 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).
The proceedings commenced on site at which the Court, in the company of the legal representatives and experts, heard an oral submission from the neighbour, at 10 Stuart Street. The Court was then taken to viewing points on Illoura Avenue from Wahroonga Park, Stuart Lane to the rear of the property, Illoura Lane to the east of the site and across Stuart Street from the public footpath opposite.
The conciliation conference then reconvened at Court where without prejudice discussions were held which had the effect of resolving a number of issues by virtue of amendments that were foreshadowed in writing by the Applicant. While parties agree the amendments resolved certain of the contentions, parties were unable to resolve all the issues in dispute.
As a result, I terminated the conciliation and proceeded forthwith to hearing.

The contentions are distilled

At the commencement of the second day of the hearing, the Applicant filed a Notice of Motion, comprising: 1. Geotechnical Investigation Report prepare by Eswnman Pty Ltd dated 13 February 2023 2. Amended Stormwater Plans prepared by MBC Engineering dated 23 February 2023 3. Amended Landscape plans prepared by CMLA Pty Ltd dated 23 February 2023 4. Amended Architectural plans prepared by WEN Architects dated 23 February 2023
The Respondent, as the relevant consent authority, agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), to the Applicant amending the development application by those documents at [16], later marked Exhibit C, and the Applicant was granted leave to rely upon those amended plans and other documents.
Supplementary joint reports were prepared by experts in planning (Exhibit 7) confirming the resolution of contentions, and in heritage (Exhibit 8) that recorded contentions were narrowed.
The issues remaining for the Court to determine are, broadly: 1. Whether the existing dwelling is a contributory item in the WCA. 2. Whether the development proposed to replace the existing development on the site warrants the grant of consent.

Whether the existing dwelling is a contributory item in the Wahroonga Conservation Area

The Respondent contends that as the existing building is a Post-war colonial dwelling, it is synonymous with, and contributes to, the WCA. As such, the dwelling makes a positive contribution to the streetscape and conservation area, and it should be retained.
According to Ms Holtham, the existing dwelling displays a number of stylistic traits of the Post-War American Colonial style, a key historical layer evident in the WCA. It presents an attractive and visually distinctive horizontal roof form with a gable end, consistent with its immediate context.
Ms Holtham relies on the indicators that describe the style in a well-known text 'A Pictorial guide to Identifying Australian Architecture: Styles and Terms from 1788 to the Present', by Richard Apperly, Robert Irving and Peter Reynolds ('Apperly text'), at pp 224-225.
Six aspects or features of the existing dwelling are identified by Ms Holtham, consistent with the style indicators, being:

Single rectangular shape
Medium-pitch roof
Gable treatment suggesting pediment
Bay window
Small-pane windows suggesting Georgian proportions
Louvred timber shutter.

Mr Oultram acknowledges the existing dwelling exhibits some characteristics identified in the statement of significance at [14], limited to the front elevation, but regards it a poor example of its type, with no architectural merit or heritage significance, no identified architect as author and, as it is outside the primary period identified in the statement of significance, contributes little to the WCA.
A contributory item is described in Section 19 of the Ku-ring-gai Development Control Plan 2015 (KDCP) in the following terms: "This Part identifies various controls that specifically apply to contributory properties. For the purpose of this DCP, Contributory Properties are buildings and sites within a HCA which are deemed to exhibit one or more of the following characteristics: i) buildings and sites that make an important contribution to the character and significance of the HCA. They can be from a key historical layer, true to an architectural type, style or period, or highly or substantially intact including their garden setting. Where subdivision has occurred, the subdivision is within the key historical period or the area. ii) buildings and sites which are altered from their original form but are recognisable and could be reasonably reinstated to that condition or the alterations are not considered to be detrimental to the integrity of the building; for example, a building that has been rendered or painted or where the roof cladding has been replaced but the form is otherwise legible. iii) buildings and sites with new layers/additions sensitive to the style, form, bulk, scale and materials of the original building. Note: Contributory buildings do not necessarily need to be high-quality buildings but should represent the key historical period of the HCA. An HCA may also contain high-quality buildings which are not necessarily from the key historical period."
Demolition of buildings within the WCA is dealt with at Section 19B.1 of the KDCP. The relevant objective is: "1 To ensure that sites, buildings and landscape features that contribute to the significance of an HCA are retained."
The controls relevantly provide: "1 In accordance with the Ku-ring-gai Local Environmental Plan, development consent is required for demolishing or moving a building, work, relic or tree within a conservation area. 2 The demolition of Heritage Items and contributory properties within HCAs is not supported. 3 Whole demolition of buildings, structures and landscape features (including significant trees) is generally not supported unless the applicant can satisfactorily demonstrate: i) demolition will not result in any adverse impacts on the streetscape or character of the HCA; ii) retention and stabilisation of the building or structure is unreasonable; iii) all alternatives to demolition have been considered with reasons provided why the alternatives are not acceptable; iv) the replacement building is compatible with the identified significance and character of the streetscape and the HCA as a whole."
The Applicant submits that the existing dwelling does not make an important contribution to the character or significance of the WCA, and whether it is from a particular period in time does not, by that fact, deem it to be from a key historical layer.
However, it is Ms Holtham's opinion that the dwelling should be considered to be from a key historical layer when a study undertaken by Mr Paul Davies in 2010, titled 'Ku-ring-gai potential heritage conservation areas north review' (Davies Study) is understood. The Davies Study identified the period of development between 1940s-1960s to be a key period in development in parts of the Ku-ring-gai area, during which period the Post-war American Colonial style was noted to be particularly common.
The Davies Study was relied upon by the Court in Jennifer Knox v Ku-ring-gai Council [2022] NSWLEC 1722, and maps from the study were cited. I note here that, unlike that case, the Davies Study is not in evidence, its status is unknown, and is agreed by the parties to be not available on the Council's website, which would suggest to me that little weight can be given to the Davies Study in this case.
Mr Oultram's assessment does not cite the Davies Study, but asserts a proper reading of the Statement of Significance for the WCA emphasises high quality Federation and Interwar residential development as the primary character, not the mid to late 20th century development that is "sparser" and is not the predominant development type in the area. Where mid to late 20th century development is identified in the Statement of Significance, it is that which "contributes positively" to the WCA that is of value, which does not apply to the existing dwelling.

Adverse impacts of the proposal

The Respondent identifies a number of adverse impacts that arise from the proposed new dwelling. Those impacts are imposed on the WCA the heritage significance of the Church and other heritage items, and on the local character and streetscape.

The Wahroonga Conservation Area

The Respondent contends that the development as proposed is incompatible with the WCA as it fails to conform to the provisions of Sections 19D.1 and 19D.2 of the KDCP.
The objectives of Sections 19D.1 are: "1 To promote high quality new design that complements the streetscape character and heritage significance of the HCA. 2 To ensure that new development retains the identified historic and aesthetic character of the HCA in which it is situated."
The Controls are: "1 Scale and massing of any 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. They are to be [sic] incorporate design elements such as the roof forms, facade and parapet heights, door, window and verandah proportions of contributory properties in the HCA, particularly neighbouring buildings from the same key development period. 2 The design and character of any new buildings are to be informed by the: i) date and style of contributory properties; ii) scale and form of contributory properties; iii) street and subdivision patterns of the HCA; iv) setbacks of neighbouring contributory properties; v) materials, building techniques and details used in the HCA; and vi) views, vistas and skylines in the HCA. 3 Façades are to be modulated to break down the scale of new development. 4 The height of new buildings is not to be higher than contributory properties. 5 New roofs visible from the street are reflect the size, shape, pitch, eaves and ridge heights, and bulk of contributory properties and roofs. They are to respect the complexity and patterns of predominant roof shapes and skylines of the HCA. 6 New buildings may be contemporary in design, however, their scale, form and detail is not to detract from the scale, form, unity, cohesion and predominant character of streetscape elements around it. 7 Where an HCA is characterised by single-storey development, single-storey development on infill sites is preferred. New two-storey houses will only be permitted where the upper floor is designed within the roof and where the new building is in keeping with the height, mass and proportions of contributory properties in the vicinity."
The objectives of Section 19D.2 are: "1 To ensure the location and siting of new development respects the established pattern of built elements in the streetscape and the HCA. 2 To ensure new development does not adversely impact on the immediate streetscape or significant views within the HCA"
The Respondent contends the proposal offends these provisions by overwhelming the adjoining Church by virtue of its height and site coverage and reduction in landscape setting.
The Controls at Section 19D.2 relate to location and setback of new buildings in the following terms: "1 The siting of new buildings is to be consistent with the established pattern of built elements in the HCA, including principal dwellings, garages, carports and garden structures. 2 Where there is a uniform building setback from streets, new buildings are to respect the established pattern and not be located forward of adjacent buildings. Where variations in setback exist, the larger setback will apply. Side setbacks are to be consistent with historic patterns. 3 New buildings are not to be orientated across sites contrary to the established alignment pattern. 4 The location of new buildings is to ensure that significant views to and from places within the HCA are retained."

The church

The Respondent contends that the proposal is highly visible in the area and fails to have regard to nearby heritage items, which is a requirement of Section 19F.1 of the KDCP. The result is that the proposal will visually dominate the scale and setting of the Church.
Section 19F.1 of the KDCP is in the following relevant terms: "Objectives 1 To consider the impact on the historic curtilage and setting of the Heritage Item or HCA and related heritage features such as views, streetscape context, historical subdivisions, garden settings, alienated trees and other landscape features. 2 To retain the significance of Heritage Items or HCAs in their settings. 3 To ensure that the scale of new development does not dominate, detract from or compete with Heritage Items or HCAs in the vicinity. 4 To ensure that new development respects and conserves the significance of any nearby Heritage Items or HCA and their settings. 5 To ensure that new development does not visually dominate the adjoining or nearby Heritage Item or HCA. 6 To ensure that the scale of new development in the vicinity of the HCA is in harmony with the streetscape and does not dominate, detract from or compete with the Heritage Item or HCA. Controls General 1 All development in the vicinity of a Heritage Item or HCA is to include a Heritage Impact Statement (HIS). The HIS is to address the effect of the proposed development on a Heritage Item or HCA and demonstrate that the proposed works will not adversely impact upon significance, including any related heritage features within the identified curtilage and setting. Built form 2 Development on sites that either directly adjoin or are in the vicinity of a Heritage Item or an HCA is to have regard to: i) the form of the existing building or buildings including height, roofline, setbacks and building alignment; ii) dominant architectural language such as horizontal lines and vertical segmentation; iii) proportions including door and window openings, bays, floor-to-ceiling heights and coursing levels; iv) materials and colours; v) siting and orientation; vi) setting and context; vii) streetscape patterns. … Views 4 New development in the vicinity of a Heritage Item or HCA is to demonstrate that it will not reduce or impair important views to and from the Heritage Item from the public domain."
The excessive size and site coverage of the proposal exacerbates the failing of the proposal to comply with setback requirements set out in Section 19F.2 of the KDCP, which has the following objectives: "1 To ensure new work in the vicinity of a Heritage Item or HCA respects and contributes to the established streetscape patterns through careful siting of new buildings. 2 To ensure new development provides an interface of scale and bulk to preserve the amenity to the adjacent Heritage Item or building within a HCA. 3 To ensure new medium and high density development does not visually dominate the Heritage Item or building within the HCA."
The relevant controls are Section 19F.2 are: "Setbacks 1 The front setback of development adjacent to a Heritage Item or buildings within an HCA is to be greater than that of the Heritage Item or building within the HCA. Where variations in setbacks exist, the larger setback will apply. Residential Context … 3 In addition to the side and rear setback controls in Section A of this DCP, new development adjacent to a Heritage Item or building within an HCA, is to comply with the following: i) adjacent developments are to have a minimum 12m building separation to the Heritage Item or building in the HCA (more if setback requirements are not met within the 12m) as per Figure 19E.3-1; ii) adjacent development is to not exceed a facade height of 8m from existing ground level, including balustrades; iii) adjacent development with a building mass above 8m high from existing ground level is to be stepped back an additional 6m from the Heritage Item as per Figure 19E.3-1; Where variations in setbacks exist the larger setback will apply."
Section 19F.3 contains an objective to ensure that new development does not impact on the landscape character and garden setting of any nearby Heritage Item or HCA, with controls in the following terms: "Controls Gardens, Setting and Curtilage 1 Development in the vicinity of a Heritage Item or an HCA is to: i) retain original or significant landscape features associated with the Heritage Item or HCA, or which contribute to its setting. In particular, garden settings in the vicinity are not to be adversely affected in terms of overshadowing or physical impacts on significant trees; ii) retain the established landscape character of the Heritage Item or HCA including height of the tree canopy and density of boundary landscape plantings or otherwise reinstated them in the new development; iii) include appropriate screen planting on side and rear boundaries."

The local character and streetscape

The Respondent contends the proposed dwelling and the garage/outbuilding to the rear of the site will adversely impact the local character and streetscape in ways that may be summarised as follows: 1. A proper site analysis, consistent with Section 2.1 of the KDCP, has not been undertaken that would identify specific contextual features to aid a compatible bulk, scale, form and setbacks. 2. The siting, bulk and scale of the proposed dwelling detracts from the established residential character and is in conflict with the Visual Character provisions under Section 4A.1 of the KDCP, evident in its insensitive siting, incompatible roof forms, setbacks, bulk, scale and form. The result is a highly visible built form that detracts from the streetscape character, is forward of the predominant building line and contains needless voids adding to excessive bulk.
The planning experts agree that the proposed garage/cabana structure complies in terms of the side boundary and laneway setback, and that the roof form, height and materials will not impose an unreasonable impact on the character of the laneway of the surrounding WCA. In fact, the experts consider the garage/cabana design to respond positively in its design, location and form to similar forms located in the immediate vicinity.

Findings

While the existing dwelling is somewhat similar in scale and roof form with the dwellings at Nos 8 and 10 Stuart Street, I accept the Applicant's submission that relying upon a degree of visual similarity is not enough, and that instead an objective framework must be applied to the assessment of the contribution made to the WCA.
The existing building displays only the most common of style indicators that may also apply to other architectural styles. In advising how to use the Apperly text, a reader is advised that "the indicators printed in italics are the ones that are peculiar to that style or that are in other ways vital to the understanding of its character" (p 12). Those indicators printed in italics are: simple, rectangular overall shape; symmetrical façade; portico; pediment; small-paned windows approximating Georgian proportions.
Of these peculiar indicators, the existing dwelling displays three, and lacks a portico or pediment.
I prefer and accept Mr Oultram's application of the style indicators, and his conclusion that while the existing dwelling can be said to display some elements associated with Post War American Colonial architecture, it is a poor example of its type and makes little contribution to the WCA.
I also accept Mr Oultram's view that when the existing dwelling is considered against the style indicators nominated by Ms Holtham at [23] a "long bow" must be drawn to apply the more unique identifiers to the existing dwelling. That is, while the dwelling is a rectangular shape, has a medium pitch gable roof, and has - predominantly - small-pane windows, only some suggest Georgian proportions, and neither the western nor eastern gable treatment suggests a pediment. I observe here that, but for a hip and not a gable roof, those indicators ascribed to the existing dwelling could also be ascribed to the proposed dwelling.
While not fatal, such a description of the existing dwelling supports Mr Oultram's opinion that it is a poor example of its type.
Next, as I consider the Davies Study to be of little assistance to the Court, it is the reference to "mid to late 20th century development that contributes positively" in the Statement of Significance to which I must have regard. While the dwelling may be from the mid to late 20th century, it contains only the most basic of features common to the Post war American Colonial style and, beyond a similarity in roof form shared by Nos 8-10 Stuart Street, the contribution made by the existing dwelling is no more than minor.
That said, on the basis of the onsite view, and to the extent the site makes a positive contribution to the WCA, it is, in my assessment, derived from its landscape presentation to Stuart Street and the setback of built form from this frontage.
As a result of amendments to the landscape plan (Exhibit C, Tab 4), the landscape presentation is retained and enhanced, consistent with the opinion of Ms Fiona Ambrosino recorded on p 4 of the landscape joint expert report (Exhibit 6) that the existing camellias should be retained which, together with supplementary planting and retention of Tree 5 and the existing front boundary wall, contributes to the landscape setting.
I note here that the conditions of consent agreed between the landscape experts in Exhibit 9 are adopted in the without prejudice conditions of consent filed with the Court on 23 March 2023.
Next, while the new dwelling proposed for the site does not match the scale and mass of the neighbouring dwelling to the east at No 10 Stuart Street, I consider this to be a function of the significant difference in levels between the properties. Instead, the ridgeline of the proposal is around 1m higher than that of the dwelling at No 10 Stuart Street which I regard to be sufficiently similar to that of its neighbour to the east, and is acceptable.
The roof material is to be amended from that shown in the materials and finishes on Drawing DA600 by the effect of a condition requiring the tiled portion of the roof to be a colour similar to Monier Marseilles in 'pottery brown' and the metal roof decking to match the selected colour of the roof tiles.
The proposal is setback 14.43m from the Stuart Street frontage at the ground floor verandah, and 17.23m at the first floor. Given such a setback, the proposal retains and enhances the landscape setting to Stuart Street.
Likewise, while the rear setback of the proposed dwelling encroaches within the 12m setback of the church, sought by Section 19F.2 of the KDCP, the proposed built form is sited to avoid providing a backdrop to the church when viewed from Wahroonga Park. Instead, the built form is contained to the area of the church carpark. While this is a highly visible sightline, the result is two distinct buildings viewed adjacent to each other, with the church viewed from this location in foreground, without built form, but rather landscape planting, evident behind.
The single storey modern annex on the church site assists in concealing a portion of the bulk of the proposed dwelling at the lowest level, ameliorating the height perceived from the location of Wahroonga Park, so that a building of no greater than 8m in height is visible.
As such the siting and orientation of the proposal will not visually dominate the church and will not reduce or impair important views to and from the Heritage Item from the public domain.
I note here that the outline of the church depicted in the architectural plans was not determined by survey and is held by no one to be an accurate approximation. While it is entirely reasonable to expect that a proposal adjacent to a heritage item is supported by thorough site analysis, as sought by Section 2.1 of the KDCP, including by survey of such an item on an adjoining site, in this instance I am assisted by the onsite view, and images contained in the planning joint report, and not the plans prepared by WEN Architects, in concluding the proposal will not adversely impact the heritage significance of the church.
I am also assisted by agreement between the planning experts, summarised at [45], that the design, setback, location, materials and form of the garage/cabana structure fronting Stuart Lane is acceptable.
On the basis of the landscape character and setback of proposed built form to Stuart Street, the proposed materials and details that are common in the WCA, and the siting of the proposal in relation to the church, I find the proposed development does not adversely affect the Wahroonga HCA, or the heritage items in the vicinity of the site, pursuant to cl 5.10 of the KLEP.

Ku-ring-gai Local Environmental Plan 2015

The parties agree that the amendments at [16] are for development with a height that complies with the height of building standard at cl 4.3 of the KLEP.
While the site is identified as being within an area nominated Class 5 acid sulfate soils by cl 6.1(2) of the KLEP, it is not within 500m of land identified as being Class 1, 2, 3 or 4, excavation is not proposed below 5m AHD and, on the basis of the Geotechnical Investigation Report prepared by Eswnman dated 13 February 2023 (Exhibit C, Tab 2), the water table will not be lowered.
I have considered the earthworks proposed by the amended development application, in accordance with cl 6.2 of the KLEP. On the basis of the Stormwater Plans, the Geotechnical Assessment at [16(1)] and the levels, retaining walls and area of pervious landscape depicted in the Landscape Plans prepared by CMLA (Exhibit C, Tab 4), I conclude the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
The site is not identified on the Terrestrial Biodiversity Map at cl 6.3(2) of the KLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

I have considered whether the site is contaminated pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the historical chronology set out in the Statement of Heritage Impact prepared by Mr John Oultram dated December 2022, I accept that there is evidence supporting the assertion of continued use of the site for low density residential purposes unlikely to lead to contamination requiring remediation. Accordingly, I conclude the site is not contaminated.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Having regard to the provisions of Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021, I note the Applicant seeks consent for the removal of one tree. The tree proposed for removal is assessed in the Arboricultural Assessment Report prepared by Seasoned Tree Consulting dated 25 November 2022 (Exhibit B, Tab 4) as appropriate for removal, is not Koala Habitat Vegetation and does not exceed the Biodiversity offset scheme threshold.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The development application is accompanied by a BASIX certificate (Cert No1300307S_05 dated 9 March 2023), prepared by Frys Energywise in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application DA0180/22 seeking consent for the demolition of an existing dwelling and construction of a new two-storey dwelling house, cabana, swimming pool and associated works at 12 Stuart Street, Wahroonga is determined by the grant of consent, subject to conditions of consent at Annexure A. 3. All Exhibits are returned except for Exhibits A, B and C. T Horton Commissioner of the Court

Annexure A 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: 23 May 2023

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (1)