Sandoval Investments v North Sydney Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: North Sydney Local Environmental Plan 2001 State Environmental Planning Policy No. 65

APPLICANT Mr M Wright, barrister SOLICITORS Minter Ellison

LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10341 of 2006 Sandoval Investments Pty Limited v North Sydney Council

JUDGMENT 1 COMMISSIONERS: This is an appeal against the refusal of Development Application No. 79/06 by North Sydney Council (the council) for the demolition of an existing residential flat building and the construction of a new residential flat building at 106 Kirribilli Ave, Kirribilli (the site).

The site and surrounding area 2 The site has a frontage of 18.25 metres to Kirribilli Ave, a north - western boundary of 27.5 metres, a south - eastern boundary of 27.175 metres and a rear boundary of 17.485 metres providing a total site area of 504.1 square metres. The site slopes steeply towards the street from the rear with a change of level of around 7 metres. Significant views are available from the site in a generally southerly direction towards the Sydney Harbour Bridge, the Opera House and the city skyline. 3 The site is currently occupied by a white rendered residential flat building comprising 8 units over 5 levels and known as "Cabana". The top-level contains a single unit with two units on each of the three levels below. A further unit is located in what appears to be the under croft area created by the slope of the site at ground level. The units are described as Lots 1 - 8 in Strata Plan 2288. 4 The surrounding area consists of a mixture of housing ranging from a single dwellings, early 20th century residential buildings, a mix of Federation and Inter War one and two-storey houses and apartments and more recent three and four-storey apartment buildings. The proposal 5 The application seeks the demolition of the existing residential flat building and the construction of a new six storey five unit residential flat building comprising one unit occupying the upper two levels and a unit on each of the remaining four levels. Rooftop amenities are also provided. Four levels of basement car parking for 11 cars are accessed off Kirribilli Ave via a car lift. Relevant planning instruments 6 The site is zoned Residential C under North Sydney Local Environmental Plan 2001 (LEP 2001). The proposed use is permissible with consent within this zone. Cabana is identified in LEP 2001 as a locally significant heritage item. The site also falls within the Kirribilli Conservation Area (the Conservation Area). 7 The relevant requirements in the LEP 2001 are aims of the plan (cl 3), zone objectives (cl 14), residential zone objectives (cl 16), Building Height (cl 17), Building Height Plane (BHP) (cl 18), Landscaped Area (cl 20) and Excavation (cl 39). The relevant heritage controls are Heritage Conservation Objectives (cl 44), Heritage Items (cl 48), Conservation Areas (cl 49) and Development in the vicinity of Heritage items (cl 50). 8 North Sydney Development Control Plan 2002 (the DCP) also applies. The DCP provides more detailed requirements including Residential Development (Part A, Section 7), Cultural Resources and Heritage (Part A, Section 8) and the Kirribilli character statement (Part B, Section 4). 9 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). The issues 10 The council filed an Amend Statement of Issues containing 13 individual issues. Vehicle access and car parking (Issue 9), Affordable Housing (Issue 12) and Stormwater Drainage (Issue 13) were not pressed by the council following the submission of further information and/or additional conditions of consent. The remaining issues can be grouped into the following main areas:

1. Heritage, and specifically o whether the existing building should be demolished, o whether the proposed building adversely impacts on the significance of nearby heritage items, and o whether the proposed building adversely impacts on the Conservation Area.

2. Design, and specifically o whether the State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) objections to the height development standard is well founded, o whether the SEPP 1 objection to the landscaped area development standard is well founded, o whether the SEPP 1 objection to the BHP development standard is well founded, o whether adequate setbacks are provided, and o whether a communal area should be provided. 3) Amenity, and specifically whether the proposal will have an unacceptable amenity impact on neighbouring properties by way of: o view loss, o overshadowing and o visual and acoustic privacy.

The evidence 11 The parties agreed to the appointment of Ms Jennifer Hill as the Court appointed heritage expert. Mr Stephen Davies provided additional heritage evidence for the council and Mr Paul Rappoport provided additional heritage evidence for the applicant. 12 Ms Antonia Stuart provided planning evidence for the council and Mr Michael Neustein provided planning evidence for the applicant. 13 The following local residents opposed the development and provided evidence on site: o Mr Rupert Daly and Ms Sonia Morris of 67 Upper Pitt St, o Ms Margaret Scanlon of 1/ 106 Kirribilli Ave, o Mr Kevin Troy of 8/ 5-7 Peel St, o Ms Francine Hudson of 10/ 1 Peel St, o Ms Jan Wilson of 17/ 1 Peel St, o Sir Eric McClintock for 1/ 69 and 3/ 69 Upper Pitt St and o Mr Paul McClintock of 2/ 69 Upper Pitt St.

Should the heritage item be demolished? 14 Clause 48(5) provides the following requirements for the demolition of a heritage item: (5) Consideration of proposed development involving complete demolition of a heritage item Consent must not be granted to development involving the complete demolition of a heritage item, until the consent authority has considered: (a) whether the heritage significance of the heritage item is insufficient to warrant its retention, and (b) whether the heritage item is reasonably capable of conservation, and (c) whether the heritage item is not in a structurally sound condition, and d) whether the character, design and aesthetics of any proposed replacement building or work and its relationship to the character of the surrounding buildings and works is appropriate. Whether the heritage significance of the heritage item is insufficient to warrant its retention - cl 48(5)(a) The evidence 15 Ms Hill, Mr Davies and Mr Rappoport agreed that the building does not satisfy the threshold criteria of significance for listing as a heritage item. They disagreed on whether consent should be granted for the demolition of the building. Ms Hill and Mr Rappoport supported the demolition whereas Mr Davies advocates the retention of the building. The difference in opinion is largely based on the contribution that the building makes to the Conservation Area. 16 The experts agreed that essential characteristics of the Conservation Area are identified in previous studies of the area and can be described as: dwellings in the area are a compatible assortment of large Federation houses and early 20th century multi-family dwelling (flats) with a relatively small footprint. Visual interest is created by broken masses and architectural details in dark brick, rough stone, plaster and timber, the scale of buildings varies from two to six storeys. 17 Ms Hill states that the essential characteristics should not be limited to early 20th century buildings but should also include later 19th century to mid 20th century buildings. Mr Davies agrees however Mr Rappoport states that the extension from the early 20th century to mid 20th century is not necessary because the majority of the buildings fall into the former category. 18 Ms Hill's conclusions are based on the building being defined as detracting from the Conservation Area. As the building was constructed in 1949 it cannot be regarded as Inter War housing. Also, the white render finish is out of keeping and the Functionalist/Modernist elements of the building are uncharacteristic and handled crudely. Mr Rappoport agrees and adds that the building does not display the essential characteristics of the style and constitutes a poor piece of architecture not designed by an architect of importance. 19 Mr Davies states that the building fits into the Conservation Area in terms of massing, size and height. It has Functionalist/Modernist elements that are handled well such as the central stair, equal bays on each side and a small footprint. In his opinion the building is capable of achieving contributory level rating. Findings 20 The relevant controls in DCP 2002 are Part A, Section 9, cl 8.8. They state; Heritage items A heritage item has cultural heritage significance. This means that the item has aesthetic, historic, scientific, social or other special value for future generations of Australia. These items have been individually identified to conserve those values that they represent. It is important to retain a representative sample of development in North Sydney so linkages with the past remain evident. Council considers the impact of proposed development on the heritage significance of properties identified as heritage items. The controls in Council's planning documents encourage retention of heritage items in their significant form whilst allowing sympathetic development to occur. Heritage items do not just include buildings; they consist of the land which bounds them (curtilage), sites or significant site features such as gardens, wells or fountains and interiors. The main difference in the consideration of an application for a heritage item and a property within a conservation area, is that Council considers heritage items independently. The development controls function to protect the significant elements of each heritage item. Council does not permit the demolition of heritage items (whole or in part), unless they have been irrevocably altered or damaged beyond a point of reasonable repair. Always consider alternatives to demolition .

Conservation areas A conservation area is more than a collection of buildings. It is an area in which the historical origins and relationships between various elements create a cohesive sense of place that is worth keeping. Conservation areas are identified by analysing their heritage significance and the special characteristics that make up that significance; these may include subdivision and street pattern, vegetation, the consistency of building materials, form and scale, or the common age of the building stock and historical associations. In North Sydney buildings in conservation areas are identified by the following categories: contributory, neutral and uncharacteristic .

Contributory items are essential to retain an area's significance, they are the link between the present and an area's history. They are buildings, sites and site features within a conservation area which contribute to the heritage significance of the area in part because of their age and integrity. Contributory items individually are not outstanding examples of a period or style of development and, therefore, are not listed as Heritage items. However they do have a collective significance and loss of any one of them will erode the heritage significance of the area as a whole. Demolition of Contributory items is not permitted under NSLEP 2001. Council's controls aim to retain contributory items in their significant form. These items may be altered provided that the work does not reduce their heritage significance.

Neutral items generally demonstrate use of compatible materials and display characteristic features, forms or scale which still contribute to the significance of the area as a whole. Neutral items can often be modified by removal of uncharacteristic elements and therefore become more contributory. These alterations should be undertaken in consideration of the predominant characteristics identified for each conservation area. Guidelines for development in conservation areas are found in this section and the character statement for each conservation area. Demolition of contributory and neutral items is discouraged by Council's development controls. Consider alternatives to demolition. Some buildings can sustain a considerable amount of change provided that change is undertaken in the context of the character of the conservation area.

Uncharacteristic elements exhibit characteristics which detract from the character and heritage significance of a conservation area. Some uncharacteristic elements may be demolished without a negative impact on the significance of the conservation area. Uncharacteristic elements will not be considered as a precedent for new work when assessing the merit of an application for development in a conservation area. Uncharacteristic elements are identified in Schedule 5 of the NSLEP 2001.

Other uncharacteristic features include: * excessive height, bulk or scale; * second storey additions above the gutter line of the main roof of Californian Bungalows; * setbacks that break up the predominant building line; * carriage development; * amalgamation or subdivision of original lots where it destroys historic subdivision pattern; * unusual building forms and footprints; * too much site coverage; * horizontal rather than vertical building form; * buildings oriented at different angles to lot boundaries; * extensive paving of front yard; * continuous garaging along street or laneway frontage; * carports, garages and car spaces in the front yard; * multi-storey garage structures; * overbridges, elevated car stand areas and excavation for driveways and basement car parking; * 'out of scale' dormers with excessive window area or doors and associated balconies; * excessive use of dormers; * oversized decks or balconies; * reflective and tinted glass; * frameless or picture windows: * concrete tile, metal deck or fibre cement shingles. 21 Part B, cl 4.1 of DCP 2002 states Heritage Significance Kirribilli conservation area is of significance: 1. as a consistent early 20th century residential area with a mix of Federation and one or two storey Inter War housing and two or three storey apartment buildings on large allotments with a strong orientation to the water. 2. as a largely intact early 20th century suburb retaining much of the urban detail and fabric seen in gardens, fencing, street formations, use of sandstone and later reinforced concrete "naturale" fencing, sandstone kerbing, natural rock faces, wide streets and compatible plantings. 3. for its unity derived from its subdivision history which is still clearly seen in the development of the area. Function a. Building Typology Federation and some late Victorian dwellings, Inter-war apartment buildings, attached dwellings according to zone 22 We accept the agreed position of the experts that the building does not satisfy the threshold criteria of significance for listing as a heritage item as it does not have aesthetic, historic, scientific, social or other special value for future generations of Australia. 23 We do not however accept the evidence of Ms Hill and Mr Rappoport that the building does not satisfy the threshold criteria of significance for listing as a contributory or neutral component of the Conservation area. 24 Ms Hill and Mr Rappoport were critical of the white rendered finish of the building and specific features of the building that did not necessarily reflect the Functionalist/Modernist elements typically found in this style of building. Ms Hill was also adamant that as the building was completed in 1949 it could not be regarded as an Inter War building. 25 In our opinion, at worst the building is a neutral component of the Conservation area. In accepting that the building does not satisfy the threshold criteria of significance for listing as a heritage item, the matters raised by Ms Hill and Mr Rappoport do not necessarily have the same level of importance as if the building was a heritage item. 26 We accept the evidence of Mr Davies that the building has the typical characteristics of the Inter War period as it exhibits many of the stylistic features found in other brick buildings. The fact that it was constructed marginally outside the precise Inter War period would have little, if any effect on the understanding of the building in its context to a person casually observing the Conservation Area. We consider that even though the building was constructed outside the Inter War period it still demonstrates features that add to the interest of the Conservation area. 27 Additionally, and while the white rendered finish of the building may be an uncharacteristic feature it would be unreasonable to use this single feature as the basis for classifying the building as uncharacteristic when it does not display any of the other specific uncharacteristic features set out in DCP 2002. The site view highlighted a number of rendered buildings in the immediate area that could not be seen to be uncharacteristic. We note that cl 8.8 of DCP 2002 for contributory items states these buildings individually are not outstanding examples of a period or style of development and, therefore, are not listed as Heritage items. However they do have a collective significance and loss of any one of them will erode the heritage significance of the area as a whole. 28 While there are some unsympathetic alterations to the building, such as reglazing and reframing in aluminium of the clearstory exterior window in the Kirribilli Avenue facade, we accept Mr Davies evidence that this and other unsympathetic alterations can be remedied. We also note that the DCP 2002 description for neutral items states that some uncharacteristic elements may be demolished without a negative impact on the significance of the conservation area. 29 In our opinion, the classification of the building as a neutral or contributory item in the Conservation area significantly diminishes the argument of Mr Rappoport that a prominent architect did not design the building. Accepting the white rendered finish of the building, we agree with Mr Davies that the building fits into the Conservation Area in terms of massing, size and height. We have some difficulty in dismissing the overall qualities of the building in the way suggested by Ms Hill and Mr Rappoport as it has been part of the Kirribilli character for over 50 years, notwithstanding the existence of some uncharacteristic features. Whether the heritage item is reasonably capable of conservation - cl 48(5)(b) The evidence 30 The applicant provided a re-adaptive scheme that upgraded the existing building by providing 5 units over the 4 levels. The ground floor contained two units with a single unit on each of the remaining three levels. A lift is provided within the building to provide for access to each of the accommodation levels. Three car parking spaces are provided at the Kirribilli Ave frontage that also provide additional spaces through the use of car stackers. The re-adaptive scheme was costed by consultants Rider Hunt at $6.6m. This equates to $9910 per square metre based on a gross floor area of 666 square metres. The applicant submits that this needs to be compared to the proposed demolition and re-building that has a cost of $10.68m but provides a gross floor area of 2441 square metres. This equates to $4431 per square metre. 31 Ms Hill states that the re-adaptive scheme is an appropriate benchmark to assess the requirement in cl 48(5)(b) as it brings the building up to modern standards such as cross ventilation, offstreet parking and storage facilities. In her experience, the Building Code of Australia (BCA) dictates that a building in excess of three storeys should provide a lift. Mr Rappoport agreed with comments of Mr Hill and maintained that even the proposed re-adaptive scheme did not satisfy the lifestyle requirements expected of the site. 32 Mr Davies disagrees and states that a more modest upgrading of the building would still provide suitable accommodation. He disputes the need for off street parking or the installation of a lift, citing examples of similar buildings where renovations had taken place without the installation of a lift. In his opinion, and if Ms Hill's evidence was correct, a large number of heritage items or like buildings with heritage significance would require the installation of lifts to meet BCA requirements which may adversely impact on their significance.

Findings 33 On this issue, we agree with the evidence of Mr Davies. We would readily accept that the proposed re-adaptive scheme provides increased levels of amenity for future occupants compared to the existing building however the test in cl 48(5)(b) is not whether the heritage item satisfies contemporary standards of accommodation but whether the building is reasonably capable of conservation. There was no disagreement that the existing building is structurally sound. Apart from the applicant's desire to provide greater amenity for the apartments, there was no evidence to suggest that the building was not reasonably capable of conservation. 34 In the absence of any specific evidence that the BCA would require the installation of a lift we do not accept Ms Hill's evidence that this is a necessary component of any refurbishment of the building. There is some merit in Mr Davies response that if this was a necessary requirement for the refurbishment of all older buildings with heritage significance then it is likely to lead to the demolition of many significant heritage buildings around Sydney and not just in North Sydney.

35 We note the following relevant comments made in the BCA Assessment and Fire Safety Upgrading Report (at p2) prepared for the applicant by BCA Logic Pty Limited: Although the existing building may not meet the prescriptive Deemed-to-Satisfy Provisions of the BCA, it does not necessarily conclude that the building is unsafe or warrants any fire safety upgrading works. The building may however, satisfy the Performance Requirements of the BCA as an Alternate Solution. For the purposes of carrying out a fire safety assessment of the existing building, the assessment will be made against the Deemed-to-Satisfy Provisions of the BCA. 36 Even if the existing building is not regarded as a heritage item, cl 8.8 of DCP 2002 states in relation to neutral items: Demolition of contributory and neutral items is discouraged by Council's development controls. Consider alternatives to demolition. Some buildings can sustain a considerable amount of change provided that change is undertaken in the context of the character of the conservation area. 37 Clause 8.8 of DCP 2002 also states: Older buildings are often designed and constructed in a way which is not consistent with the requirements of current building regulations. However, with heritage buildings not only is fire safety to be achieved, but the heritage significance is to be protected. Upgrading of heritage buildings requires a balanced consideration of fire safety issues and as well as the need to conserve culturally significant places and building fabric. When upgrading, it is preferable that changes occur to the less significant areas and elements. 38 We note that the BCA assessment provided to the Court was based only on the Deemed-to-Satisfy Provisions. It therefore cannot be concluded that the extent of works and the associated costs are necessary to conserve the building and consequently that the building is not capable of conservation.

Whether the heritage item is not in a structurally sound condition - cl 48(5)(c) 39 There is no evidence to suggest that the existing building is not in a structurally sound condition.

Whether the character, design and aesthetics of any proposed replacement building or work and its relationship to the character of the surrounding buildings and works is appropriate - cl 48(5)(d) The evidence 40 Ms Hill and Mr Davies agreed that the proposed replacement building is inappropriate. They agree that the building would have an adverse impact because it has a larger volume than the existing building and adjacent buildings, is wider than the existing building, is taller than the outline of the existing building and steps forward of the existing building line. The design is also unsympathetic with the Conservation Area due the light framed balconies, the proposed louvres and glazing and also the historicist treatment of the exposed exterior columns. 41 Mr Rappoport comes to the opposite conclusion. He states that the proposed replacement building varies only marginally with the height, bulk, setback and footprint of the existing building. The detailing is much more consistent with the predominant Federation style of architecture in the Conservation Area and makes respectful reference to it. While the glazing and louvres do not constitute elements that prevail in the Conservation Area they however belong to a post war phase of building modification now commonplace.

Findings 42 Clause 48(6) provides that: 6) Site redevelopment Despite any other provision of this plan, the consent authority must not grant consent to an application for the complete demolition of a heritage item unless the consent authority, at the same time, grants consent to a replacement building or work on the site. 43 Clause 49(2) provides that: (2) Assessment of proposed development: conservation areas When determining whether or not to grant consent to a development application in respect of a building, work or place within a conservation area, the consent authority must consider: (a) whether the proposed development will adversely affect the character and heritage significance of the conservation area, as a whole, and the part of the conservation area in the immediate vicinity of the proposed development, and (b) whether the proposed development will reduce the uncharacteristic elements present in the conservation area, and (c) without limiting the generality of paragraph (a) or (b), whether: (i) the height, number of storeys, bulk and scale of the building, and (ii) the pitch, form and detail of the roof of the building, or (iii) the style, size, proportion and position of openings for windows or doors of the building, and (iv) the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building, and (v) the setbacks of the building, and (vi) the design of the landscaped area of the development site, and (vii) the pattern of any subdivision included in the proposed development, are similar to those of contributory items within the conservation area, as a whole and in the immediate vicinity of the proposed development. 44 On this matter we agree with the evidence of Ms Hill and Mr Davies. In our view, the large areas of glazing, the lightweight construction of the balconies and the uncharacteristic columns when combined with the additional overall height, reduced front setback of some 2 metres and reduced rear setback of some 4 metres and consequent increased footprint provide a building form that is inconsistent with the general character of the Conservation Area. 45 We accept that the envelope created by the proposed building does not differ significantly to the envelope of the existing building however it must be remembered that the existing building has been in existence for some 65 years and forms part of the existing character of the area, notwithstanding that its overall height is largely inconsistent with the height of nearby buildings. While the overall height of the proposed building does not change significantly, the additional excavation and additional floors, even though screened to some extent by proposed landscaping, give the impression of a much taller building when viewed from the street. 46 The proposed building will be viewed as a new building amongst older style buildings and with its height, increased footprint and reduced setbacks will make this building more prominent than the existing building, even putting aside the increased height, increased footprint and reduced setbacks. This prominence is exacerbated by the uncharacteristic design elements used in the building. In our opinion this is clearly highlighted in the photomontages tendered by the applicant. 47 A number of recent developments were pointed out to the Court on the site view however the vast majority included design features that were more consistent with the characteristics of the Conservation Area than the proposed building. 48 In considering those matters set out in cl 48(5) we are not satisfied that the demolition of the heritage item can be supported for the reasons in pars 15 to 29. As such, the appeal must fail for this reason alone. 49 Further, and in accordance with cl 48(6) we are not satisfied that the proposed replacement building is acceptable and can be supported for the reasons in pars 40 to 47. As such development consent must not be granted and the appeal must fail for this reason alone.. Impact on the significance of nearby heritage items The evidence 50 Ms Hill and Mr Davies agreed that the proposed building will have an adverse impact on the two heritage listed items in Upper Pitt Street as the building effects the aspect or the general sense of space around the building. It also impacts on the setting and reduces the curtilage even though the original curtilage of the Upper Pitt Street items has been reduced overtime. 51 Mr Rappoport states that proposed building does not have an adverse impact on the two heritage listed items in Upper Pitt Street as the curtilage of the Upper Pitt Street items previously extended to Kirribilli Avenue and the curtilage was reduced with the construction of the existing building in 1949. As a result, the frontage of the Upper Pitt Street items has over time converted to Upper Pitt Street rather than Kirribilli Avenue. The reduction of space between the items and the proposed building affects the de facto heritage significance of the Upper Pitt Street items only to a lesser extent.

Findings 52 Clause 50 provides: 50. Development in the vicinity of heritage items (1) Development in vicinity objective The specific objective of the development in the vicinity of heritage items control is to ensure that development in the vicinity of a heritage item does not adversely affect the heritage significance of the item or its curtilage. (2) Development in vicinity controls When determining a development application relating to land in the vicinity of a heritage item the consent authority must consider the likely effect of the proposed development on the heritage significance of the heritage item and its curtilage. (3) Before determining a development application relating to land in the vicinity of a heritage item, the consent authority may require the submission of a statement of heritage impact on the heritage item and its curtilage. 53 Section 8.8 of DCP 2002 provides the following comments on curtilage: Curtilage Generally a curtilage is considered on the basis of historic 'boundaries' that are associated with the heritage significance of a place. They can also incorporate important or critical views to a place, being defined as the visual curtilage. Curtilage is also in the context of this section of the DCP applied to all cultural resources as outlined in this section. Curtilage is essential for retaining and interpreting the heritage significance of a place. There are four types of curtilage for the purposes of this section, these a redefined by the Heritage Office, Department of Planning in the following ways Lot boundary curtilage: The most common form of curtilage defined by the property boundary of an item. Reduced curtilage Where the significance of an item is less than the lot boundary. Expanded curtilage Greater than the lot boundary, it is dependent on the topography incorporating a landscaped setting or visual catchment of an item or place. Composite curtilage Generally applies to conservation areas defining the boundary of land required to identify and maintain the significance of a district or grouping of structures. This form of curtilage may also be defined by functional uses or interrelationships. The perimeters of this form of curtilage are especially sensitive. 54 The identified heritage items near the site are 67 and 69 Upper Pitt Street and 83 Kirribilli Avenue. 67 Upper Pitt Street contains a two-storey rendered dwelling built around 1870 with later additions in the 1890s and a verandah in 1926. The building is known as "Greenmount". The dwelling is also listed on the State Heritage Register as being of State heritage significance. 69 Upper Pitt Street contains a dwelling known as "The Grange". "Rydal" is a building located opposite the site at 83 Kirribilli Avenue. The properties in Upper Pitt Street were inspected on the site view and 83 Kirribilli Avenue observed from the street. 55 The heritage item most affected by the proposed development is 67 Upper Pitt Street as the dwelling is directly behind the site. The owners of 67 Upper Pitt Street, Mr Rupert Daly and Ms Sonia Morris provided evidence on site opposing the proposed development because of the unacceptable impact brought about, in part, by the reduced setback to their property and the height of the proposed building. 56 With the benefit of the site view and an understanding of the relationship between the proposed development and the heritage item at 67 Upper Pitt Street we agree with the conclusions of a Ms Hill and Mr Davies. There can be no dispute that the original curtilage of 67 Upper Pitt Street that extended to Kirribilli Avenue has been eroded since 1949 when the subject building was constructed. The current curtilage is clearly inadequate in the original context however the dwelling currently enjoys a curtilage that is made up of the rear yard setback of 67 Upper Pitt Street (6 metres) and the rear setback area of the site (6.5 metres to 9 metres). It is an expanded curtilage under s 8.8 of DCP 2002. 57 The proposal will reduce this expanded curtilage by some 4 metres and will provide for a four-storey building at a distance between 2 and 3 metres from the common boundary. Even with the applicant's concession to remove the room on the upper level adjoining the common boundary to reduce the impact, we are not satisfied that this addresses the affect on the heritage item to any significant degree. Even accepting that the original curtilage has been long reduced, we can see no valid reason to further erode the curtilage and further impact on the heritage significance of 67 Upper Pitt Street. 58 In our view, the impacts of the proposed development on the heritage items at 69 Upper Pitt Street and 83 Kirribilli Avenue are not so significant as to warrant the refusal of the development application. 59 In accordance with cl 50(2) we have considered the likely effect of the proposed development on the heritage significance of the heritage item at 67 Upper Pitt Street and its curtilage and found that the effect is unacceptable and would be a reason for the refusal of the application.

Impact on the Conservation Area 60 This issue is addressed in pars 15 to 57. In accordance with cl 49(2) we are satisfied that the proposed development will adversely affect the character and heritage significance of the conservation area in the immediate vicinity of the proposed development through the demolition of the existing building and the design of the proposed building. As such development consent must not be granted and the appeal must fail for this reason alone.

Design 61 The height and BHP requirements in LEP 2001 were marked on the application plans and showed significant breaches to these controls. SEPP 1 objections were provided for each of the breaches to these development standards as well as a breach of the landscaped area requirement. 62 The building has a height of 19.5 metres compared to the LEP 2001 requirement of 12 metres. The proposed building breaches the BHP by different amounts on different elevations. The southern elevation exceeds the BHP by up to 11 metres, the western elevation by up to 6.8 metres and the eastern elevation by up to 6.7 metres. The proposal also does not satisfy the landscaped area requirements. LEP 2001 requires an area of the 52% of the total site area whereas the council estimates that the proposal provides for 26% landscaped area. The applicant estimates the proposed landscaped area is 41%. The difference between the parties is based on the interpretation of the definition of the landscaped area. 63 Ms Stuart and Mr Neustein agreed that strict compliance with the height, landscaped area and BHP requirements in LEP 2001 was not necessary because of the form of the existing building and its non-compliance with the standards in LEP 2001. They however disagreed on the extent of any variations to the development standards. 64 Putting aside the comments on the heritage issues in the earlier paragraphs that require the appeal to be dismissed, we accept that the general proposition that strict compliance with the height, landscaped area and BHP in LEP 2001 is not necessary on the site. While Mr Neustein supported the proposed development as there was general compliance with the existing building form and with the objectives of the development standards, we are more inclined to accept the evidence of Ms Stuart who suggested a more restrained development with reduced height and setbacks and increased landscaped area because of the need to address the character of the area. 65 Clause 43 in Part 4 of LEP 2001 relating to the Heritage provisions states: The provisions of this Part prevail over all other provisions of this plan to the extent of any direct or indirect inconsistency. 66 Considering the provisions of cl 43, and having found that the proposed development is unacceptable in heritage terms for reasons relating to the height, setbacks and building footprint it must follow that the building is also unacceptable considering the requirements in cll 17, 18 and 20 relating to height, BHP and landscaped area respectively. For this reason it is not necessary to deal with each of the SEPP 1 objections. 67 Similarly, it is not necessary to deal with the individual requirements in SEPP 65 however we find for the reasons mentioned earlier in the judgment that the proposal is inconsistent with Principle 1: Context, Principle 2: Scale, Principle 3: Built Form, Principle 4: Density, Principle 6: Landscape and Principle 10: Aesthetics of SEPP 65. Amenity impacts 68 The concerns relating to view loss, loss of privacy and overshadowing are essentially redundant issues following the finding that the existing building should not be demolished and that the proposed building is unacceptable in terms of height, setbacks and building footprint. Again, putting aside the comments on the heritage issues in the earlier paragraghs that require the appeal to be dismissed, we accept the base position to be that that any redevelopment of the site should not create any greater impacts than are created by existing building however the opportunity exists for a net improvement in view loss and overshadowing to adjoining properties should a new building be erected on the site. The question of loss of privacy is best addressed through consideration of the relevant controls in LEP 2001, DCP 2002 and SEPP 65. Orders 69 The Orders of the Court are: 1) The appeal is dismissed. 2) Development Application No. 79/06 for the demolition of an existing residential flat building and the construction of a new residential flat building at 106 Kirribilli Ave, Kirribilli is refused. 3) The exhibits are returned.

      G T Brown
      Commissioner of the Court

      Annelise Tuor
      Commissioner of the Court

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