34 The principal issue in contention was the heritage significance of the item and its visual setting.
Amended plans
35 During the proceedings the applicant, assisted by Mr Staas, amended the plans as now shown in Exhibit O. These amendments resulted in the first floor of the proposed new dwelling house being reduced in area and being largely contained within the attic space of the roof. There would be a projection above the southern roof surface in the form of an 'eye-lid' dormer about 7.2m in length and a gabled roof on the northern roof face around 8m wide. The number of bedrooms was reduced from three to two.
36 The applicant sought to limit overlooking of the Graham's property at No 25 Loftus Road to the south, by proposing to fix the bottom sashes of the double hung windows and for these to be opaque glazed. The applicant pointed to the fact that these windows were to non-habitable rooms such as a bathroom and ensuite and hence privacy would not be so critical an issue. However, the westernmost window was to provide light to an alcove off Bedroom 2, [Note: Plan in Exhibit O].
The evidence and findings
37 The principal contested issue was the heritage significance of the item and its visual setting. Also important was the 'heritage curtilage' of the item that is defined as "…the area of land surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance." In the document entitled 'Heritage Curtilages' in the NSW Heritage Manual, prepared by the NSW Heritage Office and the Department of Urban Affairs and Planning a number of questions are posed to guide consideration of impacts on a heritage item and its curtilage:
· Has the significance of the original relationship of the heritage item to its site and locality been conserved?
· Has an adequate setting for the heritage item been provided, enabling its heritage significance to be maintained?
· Have adequate visual catchments or corridors been provided to the heritage item from major viewing points and from the item to outside elements with which it has important visual or functional relationships?
· Are buffer areas required to screen the heritage item from visually unsympathetic development or to provide protection from vibration, traffic noise, pollution or vandalism?
Heritage significance of the item and its visual setting
38 Messrs Staas and Logan in a joint statement considered 'The adequacy of the reduced setting for an understanding of the heritage significance of the item'. Mr Logan was opposed to siting a new dwelling in the rear yard of the locally listed heritage item and stated, [Note: Exhibit L, p 2]:
…that it is important that heritage items retain an adequate curtilage and visual setting. [I]t is [not] appropriate to subdivide the site of the heritage item given that its new rear boundary would be only approximately 1 metre from the rear of the existing dwelling, thereby reducing its curtilage and removing its rear garden area. The proposed dwelling would replace the existing garden area and open setting around the heritage item with a bulky built form, (since reduced by amendments). This would detract from the historic character and streetscape value of the existing property, contrary to Council's broader heritage objectives.
39 Mr Staas countered this view and stated, [Note: Exhibit L, p 3]:
…that the visual presentation to Loftus Road would remain unaltered by the proposed development and that this is identified as the principal area of architectural character as defined in the Council's heritage statements for the place. The item formerly [was] in a wider rural setting [and] now exists on a suburban lot. Its significance is not dependent on this lot size or the later subdivision that it is located in. The limited local heritage values of the place are fairly obvious because of the surrounding development and do not… rely heavily on the current setting to the rear which is visible only as a result of the pattern of the later subdivision.
40 Mr Stass in oral evidence was satisfied that sufficient curtilage would remain if the proposed new dwelling were erected on the new subdivided lot. He indicated that the proposed new dwelling would be setback 2.8m further from the alignment of Star Crescent than the existing building on the land. Scaling off the survey plan and the architectural drawings, the proposed setback of the new dwelling from the Star Crescent alignment would be around 11.0m. This setback, Mr Staas said, would assist in reducing the visual dominance of the proposed new dwelling when viewed from the corner of Star Crescent and Loftus Road. He also pointed to the fact that this reduction of the dominance of the new building was reinforced by the eaves of the proposed new dwelling being around 1m lower than the eaves of the rear skillion roof at the rear of the existing dwelling and would be separated from it by a distance of 4.850m. Mr Staas was content that the existing Hoop Pine and other vegetation would be retained, albeit in a new allotment, to the north and west of the proposed new dwelling and this would assist, he said, in maintaining the sense of a curtilage for the existing dwelling by visually linking this vegetation with the existing heritage listed dwelling.
41 Against this, Mr Logan was concerned that the introduction of a new dwelling between the existing dwelling and the Hoop Pine would downgrade the visual connection between the two and reduce the heritage significance of the item, its setting and its interpretation.
42 Mr Logan agreed with Mr Staas, that the visual presentation of the heritage item to Loftus Road would remain largely unaltered by the proposed development. This they agreed is an important aspect of the existing dwelling. I agree with the heritage experts that the removal of the existing carport structure on the northern façade of the existing dwelling would be a positive outcome.
43 However, I disagree with Mr Staas that the significance of the heritage item does not "…rely heavily on the current setting to the rear which is visible only as a result of the pattern of the later subdivision," and is not "…dependent on this lot size." On the contrary, I give the locally heritage listed item greater significance than does Mr Staas, and I am satisfied that the application should be refused for reason of the reduction in the size of its curtilage and the loss of the rear garden.
44 This garden has the Hoop Pine and the yet to be revealed well and provides necessary open space at the back door of the existing dwelling. If no subdivision were permitted the Hoop Pine, would remain on the same lot as the heritage item and the house and the tree could be maintained to form part of the heritage of the item. Other remnant vegetation, probably part of the original planting on the original 7-Acre lot, and associated with the house, has since been included in nearby suburban lots remote from the item, and have completely lost their significance to the item.
45 I accept the thrust of the evidence of Mr Logan and I am satisfied the proposal to erect a new dwelling and to subdivide the land, would not encourage the preservation of the heritage item's significance or its visual setting. I am satisfied that the existing visual setting and curtilage is appropriately sized and to reduce it further in size by subdivision and the erection of a new dwelling as proposed, would be so detrimental to the heritage significance of the building that it should be refused consent. Since the existing dwelling was erected over 100 years ago the land has been subdivided down to the present size of 1,069m2 to subdivide the land further, would be inappropriate in my opinion. In this regard, the evidence of Mr Staas does not persuade me and I refuse the application for this reason.
46 Answering the questions posed in the 'Heritage Curtilages' in the NSW Heritage Manual, the proposal would:
· not conserve the significance of the original relationship of the heritage item to its site and locality;
· not provide an adequate setting for the heritage item, and thus its heritage significance would not be maintained;
· not provide adequate visual catchments or corridors to the heritage item from Star Crescent and from the item to outside elements with which it has important visual or functional relationships; and
· not provide the opportunity for screening the heritage item being the house from visually unsympathetic development.
Other matters
Design
47 The zoning of the land permits low-density residential development characterised by single-storey and two-storey dwellings on relatively large lots within a landscaped environment. Mr Moody pointed out that consistent with this planning regime, the objective under the Multi-Unit Housing Development Control Plan (MUDCP) is to "…promote a low-density residential environment".
48 Originally, there were some deficiencies of the plans that would have manifested themselves in a bulky and inappropriate development. However, as the hearing progressed these issues were resolved and the first floor was changed from a full floor to an attic design. The issue of the non-compliance with the provisions of the MUDCP was resolved. The proposal now would meet the required floor space ratio, (FSR) of 0.4:1 with a FSR of around 0.3:1. It would also meet the site coverage, landscaping, setback and private open space requirements of the MUDCP.
49 Amendments to the plans before and during the hearing addressed issues including:
- The separation distance between the existing dwelling on proposed Lot A and the proposed dwelling on proposed Lot B. The separation distance now proposed would be 4.850m compared to the minimum 5m-distance under the 'Setbacks' element of the MUDCP, [Note: Exhibit 5 p 10].
- The proposed length of wall of the proposed dwelling on Lot B would now comply with the 10m-length requirement under the 'Design' element under the MUDCP, [Note: Exhibit 5, p 12].
- The proposed dwelling on proposed Lot B would now comply with the 3.6m height requirement (that is, generally not more than single-storey) under the 'Height' element of the MUDCP. Mr Moody pointed out that this height requirement is equivalent to the previous height requirement for a detached Dual Occupancy development. The MUDCP does allow two-storey buildings but only where it does not "…adversely impact on the streetscape, privacy, solar access and views enjoyed by adjacent properties".
50 Mr Moody was of the opinion that in respect of the original design:
When standing in the rear yard of No 25 Loftus Road, one will see a tall-extended structure in a position, which normally has minor ancillary single storey structures. Whilst the second floor setbacks somewhat reduce the apparent bulk and scale, the proposed dwelling on proposed Lot B will clearly be seen as a 2-storey structure in very close proximity to the rear private open space of No 25 Loftus Road. Placement of a large extended 2-storey structure in a rear yard is contrary to the character of a low-density residential environment and is contrary to Council's Planning Controls.
51 At the conclusion of the proceedings Messrs Moody and Glendinning, consultant town planners, agreed that with the amendments to the plans in Exhibit O that the proposal would be acceptable from a dwelling design viewpoint. The Graham's at No 25 Loftus Road were content that the bulk of the first floor had been reduced by the provision of the eye-lid dormer, and requested that the sill heights to the windows on that side be elevated to 1.5m above finished first floor level or be relocated to the north. Replacing a gabled end wall with a hipped roof reduced the bulk of the proposed first floor of the new dwelling when viewed from No 1 Star Crescent. This was achieved by removing one bedroom from that level thereby reducing the volume on the first floor.
SEPP1 objection
52 Mr Moody stated:
It should be noted that the area of proposed Lot B is only 472m2, which is 28m2 or 5.6% below the minimum standard 500m2 under Clause 14 of the HLEP. A SEPP No 1 Objection has been lodged. Whilst this deficiency is of concern, I consider that the primary concern relates to the design of the proposed dwelling on proposed Lot B and its consequential impacts on adjoining properties.
53 So if approval were contemplated an SEPP1 objection would need to be upheld to permit the land to be subdivided.
Impact on neighbours
54 With the amended design the overlooking of the Graham's rear yard at No 25 Loftus Road, would be largely addressed. Mr Graham said that he would prefer the dormer windows on the first floor to have a sill height of 1.5m rather than as proposed for the bottom half of the windows to be fixed and opaque glazed.
55 With the provision of a hipped roof to the western side of the proposal the overshadowing and overbearing impact on the Gibson's property at No 1 Star Crescent was largely resolved.
56 I would not refuse the amended application for reason of adverse impacts on neighbours.
Car parking
57 The amended proposal would provide for two car parking spaces for each dwelling in accordance with the council's requirements. This issue is resolved.
Not in public interest
58 Both the neighbours expressed concern for the erection of a new dwelling in the rear part of the land. Putting this concern to one side, with the reduction in the height of the proposal many of the concerns related to the bulk and height of the proposed new dwelling would be resolved.
59 For the above reasons, on balance the appeal is dismissed for reason of the adverse impact on the heritage significance of the existing building and its curtilage.
Orders
My orders are: