McFarlane v Inner West Council [2024] NSWLEC 1484 | Case summary

Land and Environment Court (NSW)|2024-07-26

JUDGMENT

COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application number DA/2023/0112 for alterations and additions to a dwelling house including partial demolition, rear extension with upper level, reinstatement works, garage and pool. The works are proposed at 15 Tressider Avenue, Haberfield.
The appeal was subject to mandatory conciliation on 25 July 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated, and a hearing held forthwith pursuant to s 34AA(2)(b)(i) of the LEC Act.
Leave was granted by the Court at the commencement of the hearing for the applicant to rely on an amended proposal, Exhibit C.

Issues

The Councils contentions can be summarised as: 1. That the proposed alterations and additions, in particular the proposed roof form and clerestory glazing of the extension, will have a detrimental impact on the Haberfield Heritage Conservation Area (HCA). 2. The development application relies on variations to the planning controls in Comprehensive Inner West Development Control Plan 2016 (DCP 2016). The Court should not flexibly apply those provisions as the development does not achieve the objectives of the controls. 3. That the detrimental impact arising from the proposed development on the HCA, when considered as part of the evaluation of the development application pursuant to s 4.15 of the EPA Act, is sufficient to warrant the refusal of the development application.

The site and its context

The site is known as 15 Tressider Avenue, Haberfield and is formally described as Lot 357 DP 176921. The Site is located on the north-eastern side of Tressider Avenue, on the bend in the street between Hawthorne Parade and O'Connor Street. The primary frontage of the site is the narrow frontage. The site area is approximately 894m².
Below is an aerial photograph with the subject site shaded.

The proposal

The proposed development, as amended, retains the front four rooms of the existing dwelling. Further, it removes the current enclosed veranda and reinstates an open verandah, front steps and timber work. At the rear of the existing dwelling the current dining, kitchen, rumpus rooms and the detached garage, carport and laundry are proposed to be demolished. The additions constitute a new garage, entertaining area and kitchen. The original tiled roof is extended (at a lower ridge height) over the extension and accommodates the addition of an attic bedroom within the roof space. The northern façade of the extension includes a ribbon of clerestory glazing above a new single storey metal roof.

Preconditions to consent & Planning Framework

As the development application was lodged after 1 March 2022, the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) applies. The development application is made with the consent of the owners of the land: s 23 of the EPA Regulation.
Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.
The application is accompanied by BASIX certificate (Certificate No. A486843), in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004). I note that BASIX SEPP 2004 was repealed on 1 October 2023, but the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) have the effect of saving the development application from the provisions of Sustainable Buildings SEPP.
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) concerns the protection/removal of vegetation identified under the Vegetation SEPP. The proposed development seeks consent to remove one tree in the rear yard. A number of conditions are imposed in relation to tree protection and the I am satisfied that with reference to the Vegetation SEPP the proposed development is acceptable.
The site is zoned R2 Low Density Residential under the Inner West Local Environmental Plan 2022 (LEP 2022). The proposal is permissible with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone which are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide residential development that maintains the character of built and natural features in the surrounding area.
The development application proposes demolition which is permitted with consent pursuant to cl 2.7 of LEP 2022.
The development application complies with the development standards for floor space ratio and maximum building height under LEP 2022.
The site is located within the Haberfield Heritage Conservation Area (HCA) and the proposal is therefore subject to the provisions of cl 5.10 of LEP 2013. Sub-clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage significance of the HCA.
Pursuant to cl 6.1 'Acid Sulfate Soils', the site is mapped as 'Class 5' on the Acid Sulfate Soils map. However, as the alterations and additions do not propose works within 500m of another class, or classes of such soil, nor proposes excavation below 5m Australian Height Datum, and is unlikely to require the disturbance of 1 tonne of soil. I conclude that an Acid Sulfate Soils management plan is not necessary.
Clause 6.2(3) 'Earthworks' applies to the site. The development application proposes minimal earthworks in association with construction of footings. Having reviewed the documents which form part of the development application and the matters listed at cl 6.2(3) of LEP 2022, I can be satisfied that none warrant the refusal of the development application.
Clause 6.20 'Development on land in Haberfield Heritage Conservation Area' applies. It states: (1) The objective of this clause is to maintain the single storey appearance of dwellings in the Haberfield Heritage Conservation Area. (2) This clause applies to land identified as "C54" on the Heritage Map. (3) Development consent must not be granted to development for the purposes of dwelling houses on land to which this clause applies unless the consent authority is satisfied that - (a) if the development involves an existing dwelling, or alterations or additions to an existing building - (i) development above the existing ground floor level will not exceed the development contained within the existing roof space, and (ii) development below the existing ground floor level will not exceed 25% of the gross floor area of the existing ground floor, and (b) the development will not involve excavation in excess of 3m below the existing ground floor, and (c) the development will not involve the installation of dormer or gable windows, and (d) at least 50% of the site will be landscaped area.
Clause 4.6 Exceptions to development standards is in the following terms: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained.
On 9 April 2024, Inner West Council endorsed a new site specific DCP for Haberfield. This came into effect on 30 April 2024 with no savings and transitional provisions. The applicable development control plan is Chapter E2: Haberfield Neighbourhood in DCP 2016. Chapter E2 applies to the whole of the HCA. The statement of significance for the HCA is detailed in Chapter E2 at cl 2.2.1 as follows: "Developed at the turn of the twentieth century, the Garden Suburb of Haberfield is of significance in the history of Australian town planning as a comprehensively planned and designed 'model garden suburb' influenced by the international Garden City movement and the nascent 'art and science' of the modern town planning movement. Marketed as 'slumless, laneless, and publess', as Australia's first Garden Suburb, it was coherently and pragmatically planned to address the social, physical, aesthetic, and economic planning issues of at the turn of the twentieth century. It predates international exemplars of the Garden City movement, such as Letchworth (1904) and Hampstead Garden Suburb (1907), and Colonial Light Gardens in South Australia. It was influential in shaping the state's emergent town planning discourse and in the design and planning of subsequent 'model suburbs', including Daceyville and Roseberry. Haberfield has a strong historical association with auctioneer, real estate entrepreneur, town planning advocate, Richard Stanton (1862-1943) who was the visionary behind the suburb's development. A reformer and staunch advocate for Federation, Haberfield is representative of Stanton's interest in city 'improvement' and in the planning of healthy social and physical environments for 'betterment' and moral reform in New South Wales. Haberfield demonstrates the commercial, social, aesthetic and broader civic value of Stanton's approach to town planning through a comprehensive and clever system of land purchase, zoning principles, strict covenants, built form design, landscape controls, and the provision of infrastructure and a labour force. Stanton and his family resided in the generously proportioned, The Bunyas, a grand Federation-period residence displaying Arts and Crafts stylistic influences that was designed by Stanton and Sons' architect, John Spencer-Stansfield. As the architect to Stanton and Sons, between 1905 and 1914, Spencer-Stansfield designed of hundreds of individually designed and detailed homes in Haberfield. Haberfield also has an historical association with Dr David Ramsay (1794-1860), a medical practitioner and merchant who owned the land prior to Stanton and is associated with the historic property, Yasmar. Much of the suburb known as Haberfield was formerly called 'Ramsay's bush'. Several streets in the area retain names reflecting the historical association with the Ramsay family, including Ramsay Street and Dalhousie Street (reflective of the Ramsay's historical connections to Scotland). Haberfield has historical associations with other individuals of note in the history of New South Wales, including Joseph Neal Grace, the founder of Grace Brothers department store, and the composer, Peter Dodds McCormick, who wrote the national anthem, Advance Australia Fair. Within New South Wales, Haberfield's planned and originally integrated designed landscape is an early and outstanding example of environmental forethought and comprehensiveness in Australian suburban planning - with landscape design given equal priority to the design of built fabric. A collection of interrelated public and private spaces, Haberfield is a formally designed and planned suburban living environment dating from the early twentieth century that is integral to understanding the development of Australian town planning. The landscape significance of Haberfield is encapsulated by four principal elements: 1. the extant street pattern of the suburb's original layout 2. the extant residential allotment proportions developed in Haberfield's original layout 3. remnant hard and soft garden fabric from original residential garden layouts, and historical plantings in those gardens 4. street tree plantings from the first phase of the suburb's development Through its overall landscape setting and design, combined with the composition and arrangement of built form, Haberfield is simultaneously cohesive and unique, demonstrating the Garden City principle of 'unity but not uniformity'. Setbacks from the street are uniform, with landscaped front gardens and low front fences ensuring long park-like views along street alignments. Detailed design for civic works, including road verges, trees with timber guards, stone kerb and guttering, nature strips with concrete paths and street lighting ensure visual harmony and consistency. Haberfield is important in demonstrating aesthetic characteristics that define the Garden Suburb, as well as several Federation architectural styles within New South Wales. Overall, the suburb's residential architecture presents as a collection of well-detailed and crafted period houses that evidence an overarching visual coherence in design, form, materiality and colour. The suburb is characterised by its ability to demonstrate a collection of distinctive Federation period architectural styles within New South Wales in its residential architecture. Houses were designed under covenants which ensured that each was of similar form, materials, and scale. Each is aesthetically distinctive, demonstrating visually pleasing arrangements that have sensory appeal. Federation period houses designed in the Queen Anne and Arts and Crafts style demonstrate the culmination of these styles' vernacular motifs, including rising sun motifs, waratah, flannel flowers and the first Australian coat of arms. The composition of form and textural arrangement of materiality demonstrates a high degree of mastery. The Haberfield HCA has a strong connection to the community through the Haberfield Association, which has advocated for the protection and conservation of the area for over four decades. Haberfield has strong associations with Italian cultural traditions and culinary influence along Ramsay Street, shaped by mass Italian post-war migration to Australia and settlement in the area. Haberfield is representative of the course and pattern of migration to NSW in the mid-twentieth century. Haberfield is of significance to the state of New South Wales and displays historical, associative, aesthetic, and representative qualities that are rare or unique within the state."
DCP 2013, at cl 2.2.2, includes the following relevant objectives for the controls in Chapter E2: Objectives O4. To provide controls for buildings and their landscape that will ensure that the single storey appearance of each dwelling in the Haberfield Heritage Conservation Area is maintained, and the garden suburb character of Haberfield is conserved. Note: Give the same careful consideration to changes to the back of houses and shops as you would to those visible from the street or a public place because they could alter the harmonious proportion and scale common to the suburb. O5. To ensure that necessary change, such as alterations and extensions to existing buildings, will respect the contribution of those buildings to the heritage significance of Haberfield and will have no ill effect on the heritage significance of Haberfield as a whole. O6. To allow necessary change, but only where it will not remove or detract from the special qualities that contribute to the heritage significance of Haberfield. Note: Avoid even minor alterations (such as removing finials) or additions (such as enclosing a verandah) and unsympathetic changes to building details can reduce the historical, architectural, and real estate value of the individual building. These will reduce its relationship with neighbouring buildings and diminish the overall heritage value of Haberfield which has such a strong common design theme. O7. To encourage the removal and reversal of those components which detract from the heritage significance of Haberfield.
The following controls in Chapter E2 are relevant to the evidence and the evaluation of the proposed development: 2.2.3 Pattern of Development. … C5. Any new development (new building or extension to an existing building) shall produce site coverage similar in pattern and size to the site coverage established by the original development of the suburb. No new structures are to be built forward of the existing building line; new car ports or garages in the front setback are not supported. Side setbacks must reflect those in the area and nil side setbacks are not appropriate. 2.2.4 Building Form … C9. Where extensions are involved, new roofs are to be lower than the main roof form with a maximum height considerably less than the principal ridge point. C10. The overall length of any extension is to be less than, and secondary to, the original house. C11. Attic rooms must be built within the main roof shape. They must not involve alteration of the roof shape or extend outside the existing roof plane. C12. Attic rooms are to be modest in scale and comprise one (1) or at the most two (2) rooms capable of habitation. C13. Skylights are not permitted in the front or side faces of the main roof. Attic windows must be modest timber framed flush "in plane" skylights only - maximum one skylight per side or rear roof elevation. Dormer windows, Juliet balconies and similar protrusions are not permitted. C14. Rear extensions containing an attic may be considered where the attic does not cause the extension to compete with the scale and shape of the main roof and is not visible from a public place. … C16. Extensions shall not employ any major or prominent design elements that compete with the architectural features of the existing building. 2.2.5 Roof Forms … C19. Roof extensions are to be considerably lower than the original roof and differentiated between the original and new section. A set down of 500 mm is generally acceptable. … 2.2.6 Siting, Setbacks and Levels C22. The established pattern of front and side setbacks should be kept. Nil side setbacks were rare and depart from Garden Suburb principles. C23. New residential buildings or extensions should not be built forward of existing front building lines. … 2.2.7 Walls C27. The original shape and materials of the front and side walls shall not be altered. … 2.2.10 Windows and Doors … C40. The size and style of new doors and windows should reflect the relative importance of the room to which they belong. … 2.2.13 Garages and Carports … C53. New garages and carports are to be located at the back or at the side of the house. C54. Where a garage or carport is at the side of the house it must be at least 1 metre back from the main front wall of the house and have a maximum width of 3 metres. C55. Garages and carports are to be free standing. C56. Garages and carports shall be of simple utilitarian design. They shall not challenge the mass or bulk of the individual house. …

Public submissions

The development application was notified for a period of 14 days from 15 to 29 March 2023. Two submissions were received. The issues raised in submissions can be summarised as follows: 1. Concern about the impact on the HCA 2. Non compliance with the requirement for landscape area. 3. The size, bulk and scale of the extension will overwhelm the existing house. 4. The proposed garage is not free standing. 5. The design of the front fence is inconsistent with DCP 2013. 6. The paving around the proposed pool is excessive. 7. The materials for the portion of the proposed roof extension should match the existing.
The development application has been amended and additional information provided, in part in response to the concerns raised by submissions and the residents who addressed the Court. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

Expert evidence

The Applicant relied on the expert evidence of Mr Jeff Mead (Planning) and Mr James Phillips (Heritage). The Council relied on expert evidence of Ms Felicity Hannan and Mr Robert Moore (Heritage).

Contravention of development on land in the Haberfield HCA controls in LEP 2022

In order for development consent to be granted for a development that contravenes a development standard in LEP 2022, I must be satisfied the proposal is consistent with the objectives of the development standard and the objectives for development with the zone (cl 4.6(4)(a)(ii) of LEP 2022) and that the Applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2022) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2022).
The development standard at cl 6.20(3) contains four components. Firstly, where the development involves alterations and additions, at (i) the development above the existing floor area will not exceed the development contained in the roof space, and at (ii) development below the existing floor level does not exceed 25% of the gross floor area of the existing ground floor. The first part of this component of the development standard at cl 6.20(3) us relevant to the proposed development. The Applicant's written request identifies that the development is non compliant with cl 6.20(3)(a)(i). Applying Wehbe v Pittwater Council (2007) NSWLEC 827, it justifies the variation by establishing that the objective of the standard is met, despite the numerical variation. In this case, the relevant objective is to maintain the single storey appearance for dwellings in the HCA. I note in their joint report the planning experts agree that this objective is met by the amended development application. Further, the written request justifies the numerical non compliance by demonstrating sufficient environmental planning grounds which can be summarised as follows:

The site is a corner allotment which enables the second storey element to be set behind the dominant single storey roof profile as viewed from the two public street frontages. The addition is lower in and is screened by the existing roof profile.
The upper level addition will significantly improve the amenity of the existing dwelling, its practicality as a family home and the diversity of dwellings within the HCA.
There is an absence of any material impacts arising from the non compliance on the environmental values of the locality, the amenity of the neighbours or on the character of the area.

I have considered the Applicant's written request under cl 4.6 of LEP 2022 and I am satisfied that the written request has adequately addressed the matters required to be demonstrated and that compliance with the component of cl 6.20(3)(a)(i) is unnecessary in the circumstances of the appeal and that there are sufficient environmental planning grounds to justify contravening the development standard.
The second (the extent of excavation), third (the use of dormer or gable windows) and fourth (the landscape area) components of cl 6.20(3) are agreed to be satisfied, or do not arise, in the circumstances of this development application.
The exceedance of the standard is minor, will not be visible from the public domain within the HCA and is responsive to the site constraints and the form of the existing dwelling.

Impact of the proposal on the heritage significance of the HCA

The Respondent contends that the alterations and additions proposed in the development application will result in an unacceptable adverse impact on the significance of the HCA. The property itself is not listed as a local heritage item under LEP 2022, or identified within DCP 2013 as making a significant contribution to the HCA.
The statement of significance (at [13]) identifies that the significance of the HCA arises from five criterion. Firstly, its historical significance as the first garden suburb and its influence on planned suburb designs. Secondly, its association with Richard Staunton, approach to town planning and the development of suburb specific planning controls. Thirdly, its association with Dr David Ramsay and other prominent landowners. Fourthly, its landscape significance and the cohesive landscape and civic works. Fifthly, its aesthetic characteristics. These are described in the statement of significance as: … the suburb's residential architecture presents as a collection of well-detailed and crafted period houses that evidence and overarching visual coherence in design, form, materiality and colour. The suburb is characterised by its ability to demonstrate a collection of distinctive Federation period architectural styles within New South Wales in its residential architecture. Houses were designed under covenants which ensured that each was of similar form, materials, and scale. Each is aesthetically distinctive, demonstrating visually pleasing arrangements that have sensory appeal.
Finally, the HCA has significance for its strong societal connection to the Haberfield Association.
In these proceedings the experts address their evidence to the impact of the proposed development on the aesthetic significance of the HCA. The focus of their evidence is on the acceptability of the proposed roof form, the clerestory glazing and the design of the proposed garage.
Mr Moore's evidence on these matters can be summarised as:

The design of the proposed development fails to respond to the detailed planning controls applicable to the development and is discordant with the values of the HCA. This lack of compliance and the discordant nature of the proposal will be detrimental to the significance of the HCA.
The alterations are boldly visible, in particular the proposed clerestory glazing.
The extent of demolition of the existing roof structure is detrimental. This is significant in circumstances where the roofs of the houses in the HCA are an important element of their design. The proposed roof extension is atypical.
To be consistent with the HCA, the garage should be separate from, not incorporated into the main house form.
The extent of the upper level accommodation proposed in the development application is excessive. It results in an atypical roof form, including obtrusive glazing elements, that will be visible from neighbouring properties. Further, the extent of the proposed roof extension is proportionally competitive with the prominence of the retained dwelling.
The design tends to be different and noticeable in the HCA in a manner that is not intended by the planning controls which seek instead for new development to be compatible and collegiate to ensure the maintenance of the significance of the HCA.
That the proposed masonry side boundary fence is uncharacteristic and unsympathetic to the aesthetic characteristics of the HCA.

Mr Moore concludes that the development will result in an adverse impact on the significance of the HCA. Further, he argues that this impact is sufficient to warrant the refusal of the development application.
In the alternative Mr Phillips argues that when considered as a whole, the development application has three components Further, he argues that in assessing the impact of the proposed development on the HCA it is necessary to consider each of these three elements. Those components are:

the restoration of the front elevation and street address of the existing dwelling by removal of earlier unsympathetic works which included the 'closing in' of the porch space.
minimal demolition of fabric at the rear of the existing dwelling to facilitate an extension to create a family home.
a thoughtful addition at the ground floor and insertion of an attic bedroom into the roof space. He notes that the extension incorporates a palette of materials entirely consistent with the HCA, namely face brickwork, terracotta Marseilles tiles and roughcast render.

It is Mr Phillip's evidence that the development application will have no adverse impact on the significance of the HCA.
In response to Mr Moore's concerns about the visibility of the extension from adjoining properties, Mr Phillip's argues that the new northeast elevation will be barely visible from the rear of 17 Tressider Avenue (to the north) and barely visible from the rear yard of 13 Tressider Avenue. Further, he notes that the amended development application further visually separates the proposed garage from the form of the main house.
Both the heritage experts agree that the upper level glazing (clerestory), or the form of the attic proposed, would not be visible from the public domain.

Findings

Clause 5.10(4) requires my consideration of the effect of the proposed development on the heritage significance of the area. That consideration requires a balancing of the effects of all the elements of the proposed development. It was the oral evidence of both heritage experts that, subject to appropriate detailing, the demolition of the unsympathetic works, reinstatement of the entry porch and detailing of the front façade will be a positive contribution to the significance of the HCA. I accept this agreed evidence. The experts disagree as to the impact from the remaining works proposed on the significance of the HCA arising.
In considering the remaining elements of the proposed development, namely the proposed demolition and the new works, I accept and prefer the evidence of Mr Phillip's. In my view Mr Moore takes too strict an approach to the assessment of the proposed additions. I make this conclusion on the basis that within the applicable planning framework there is a hierarchy of heritage management, from listing of individual items (at a State or local level) to the listing of precincts as conservation areas on the basis of common heritage values. Such determinations of significance are based on an item's (or precinct) historic value; connection with important persons or groups; aesthetic, creative or technical achievement; social significance; rarity; representativeness and/or its potential to contribute to an understanding of the local area's history. Heritage listing recognises the heritage significance of a property or a precinct against one or more of these criteria. In these proceedings the property is not individually recognised as having heritage significance, but rather as being part of a broad heritage conservation area that has significance. In my view this hierarchy, and how it applies to the facts of a particular development, should influence the rigour applied and latitude that is appropriate to change arising from new work in the HCA and the assessment of the application against the applicable development controls.
Applying the elements of the significance of the HCA to the assessment of the merit of the development application I am satisfied that the proposed works will have no impact on the first criterion, its historical significance as the first garden suburb. The extension retains a clear delineation between the main dwelling and a rear yard. In my view, the only element of the development application which detracts from this site planning is the masonry fence proposed for the extent of the side boundary presentation of the site. In my assessment this side fence should be altered to replace the proposed rendered section with timber palings, a finish more consistent with the HCA. I have imposed a condition to this effect.
The proposed development will not affect any significance of the HCA arising from its association with Richard Staunton or the historic approach the town planning of Haberfield. Nor will it impact the association of the HCA with Dr David Ramsay and other prominent landowners.
Responsive to the fourth criterion of the significance of the HCA the development application proposes no works in the front setback of the existing dwelling, maintaining the extensive front garden space and retains the existing street tree plantings.
Finally, in relation to the significance of the HCA arising from its aesthetic characteristics, I note the agreed evidence of the experts is that any works proposed at the upper level will not be visible from the public domain. Significant emphasis in the HCA is placed on the streetscape presentation, materiality and roof forms of buildings. In my assessment the lateral extension of the existing building will read as a single storey addition under a tiled roof with a pitch. The proposed form is compatible with the HCA. The form of the addition and the choice of sympathetic materials make it acceptable. The additions are of a form that is deliberate and respectful of the form, scale and materials common to the area. I do not accept Mr Moore's evidence that the insertion of upper-level clerestory glazing which improves the solar amenity of the dwelling and is visible only from the rear of adjoining properties is detrimental to the significance of the HCA. The architectural choice in the amended plans to separate the garage form from the extension is a positive change that assists in modulating the built form and improving its compatibility with the character of forms in the HCA. I am not persuaded that a detrimental impact to the significance of the HCA arising from the proposed additions is made out on the evidence.
Further, I am satisfied that works proposed with the application to preserve and enhance the address of the site to Tressider Avenue, through the restoration and improvements to the existing dwelling, reinstatement of the porch and maintenance of the front setbacks landscape setting, are likely to make a positive contribution to the HCA.
I am satisfied, on the basis of all evidence before me and my observations during the site view that the proposed development will not adversely impact on the significance of the HCA.

Variation to the controls in DCP 2013

It is well established that the provisions of a development control plan need to be taken into consideration, in determining a development application, as a "fundamental element" in or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]. The Court, exercising the function of the consent authority to consider and determine the development application, is required to "take into consideration" any development control plan of relevance to the development the subject of the development application: s 4.15(1)(a)(iii) of the EPA Act. A provision of the development control plan that is "directly pertinent" to the development and the development application is entitled to "significant weight" in the decision-making process, although it is not determinative: Zhang v Canterbury City Council at [75].
The Respondent contends that the development application relies on variations to the planning controls in DCP 2016 and that the Court should not apply those provisions flexibly as the development does not achieve the objectives of the controls. The applicable controls that are varied by the proposed development in DCP 2016 are extracted at [15].
Although the provisions of a development control plan need to be fundamental elements and focal points in the decision-making process, they may be applied flexibly. The EPA Act at s 4.15(3A) states: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority - (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 at [68] s 79C(3A)(b) of the EPA Act (as it was then) requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.
Applying s 4.15(3A)(b) of the EPA Act the relevant objectives for all the controls in Ch E2 - Haberfield Heritage Conservation Area are: O4. To provide controls for buildings and their landscape that will ensure that the single storey appearance of each dwelling in the Haberfield Heritage Conservation Area is maintained, and the garden suburb character of Haberfield is conserved. Note: Give the same careful consideration to changes to the back of houses and shops as you would to those visible from the street or a public place because they could alter the harmonious proportion and scale common to the suburb. O5. To ensure that necessary change, such as alterations and extensions to existing buildings, will respect the contribution of those buildings to the heritage significance of Haberfield and will have no ill effect on the heritage significance of Haberfield as a whole. O6. To allow necessary change, but only where it will not remove or detract from the special qualities that contribute to the heritage significance of Haberfield. Note: Avoid even minor alterations (such as removing finials) or additions (such as enclosing a verandah) and unsympathetic changes to building details can reduce the historical, architectural, and real estate value of the individual building. These will reduce its relationship with neighbouring buildings and diminish the overall heritage value of Haberfield which has such a strong common design theme. O7. To encourage the removal and reversal of those components which detract from the heritage significance of Haberfield.
Having regard to the evidence and my findings in the preceding I am satisfied that it is appropriate to be flexible in applying the development controls in Chapter E2 for the subject development. My reasoning follows.
It is my assessment, and the agreed evidence of the planning experts in the proceedings, that the proposed development will appear as a single storey dwelling, despite the attic addition. Objective 04 seeks to maintain a single storey appearance in the HCA to support the garden suburb character of Haberfield. I am satisfied this objective is met, despite the variation to the development controls proposed by the development application. As noted at [38] I am not persuaded by the evidence of Mr Moore that the proposed clerestory fenestration will have a detrimental impact to the HCA and in not incompatible with the achievement of this objective.
Consistent with my findings in the preceding I am satisfied that the alterations and additions proposed to the existing building will not have a detrimental impact on the heritage significance of Haberfield as a whole. I am satisfied the development is not inconsistent with objective 05.
Objective 6 is consistent with the cautious approach to changing heritage places advanced by the Burra Charter. I accept the evidence of Mr Phillip's that the works proposed in the development application will assist in making the existing dwelling a more practical family home of higher amenity. I am satisfied the extent of works proposed is consistent with the intent to restrict development to that which is appropriate for it to continue to be functional. Further, consistent with the objective, the development application includes works to remove components of the existing dwelling that detract from its contribution to the HCA. I am satisfied the development is not inconsistent with objective 06.
On the same basis as the preceding I am satisfied the development application is consistent with the objective to encourage the removal and reversal of those components which detract from the heritage significance of Haberfield.
For these reasons I am satisfied that the proposed development meets the controls for Pattern of Development (2.2.3), Building Form (2.2.4), Roof Forms (2.2.5), Siting, Setback and Levels (2.2.6), Walls (2.2.7) and Windows and Doors (2.2.10) expressed in the controls in Chapter E2 of DCP 2016 as it meets the listed objectives of those controls. I find that this is sufficient basis on which to the flexibility at s 4.15(3A)(b) of the EPA Act.

Conclusion

Following a consideration of the evidence and the submissions I have found that none of the contentions raised by the Respondent have been established as grounds for refusal of the development application. Further, there are no jurisdictional impediments to the grant of development consent subject to the annexed conditions. Accordingly I find that the appeal should be upheld and consent granted to the development application.

Orders

The Court orders that: 1. Appeal is upheld 2. Development application DA/2023/0112 for alterations and additions to a dwelling house including partial demolition, rear extension with upper level, reinstatement works, garage and pool at 15 Tressider Avenue, Haberfield is approved, subject to the conditions of consent in Annexure A. 3. The exhibits are returned with the exception of Exhibits 1, A and C

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: 13 August 2024

McFarlane v Inner West Council

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Judgment (14 paragraphs)

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Cases Cited (3)