Toon v Ku-ring-gai Council

[2004] NSWLEC 173

Land and Environment Court (NSW)|2004-04-30|Before: Cowdroy J, Mr P

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2004-04-30

Before

Cowdroy J, Mr P

Source

Original judgment source is linked above.

Judgment (206 paragraphs)

[1]

Introduction 1 This is an appeal against the refusal of Development Application 165/03 by Ku-ring-gai Council ("the council") for the demolition of an existing building and the erection of a development for older people or people with a disability at 50 Pentecost Avenue, Pymble ("the subject site"). 2 A view of the subject site, some adjoining properties and the general area was undertaken on the morning of the first day of hearing in the company of representatives from both parties. With the agreement of the parties, a number of local residents provided their evidence at this time. 3 For the reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions. 4 I record I was assisted by Commissioner Brown in the appeal.

[2]

Subject site and surrounding area 5 The subject site is identified as lot B in DP 337907. It is rectangular in shape with a frontage to Pentecost Avenue and a rear boundary of 32.005 m and side boundaries of 53.525 m, giving a total area of 1713.5 sq m. It has a moderate fall of 5.3 m from the south-east corner to the north-west corner at Pentecost Avenue. 6 A large two-storey dwelling, dating from 1938 is located on the subject site and is setback some 15 to 16 m from the Pentecost Avenue boundary. A timber garage/shed is located in the south east corner of the rear yard with access along the western boundary of the site. The subject site contains landscaped gardens and a number of large trees. 7 The subject site is located within a residential area with a mixture of housing types consisting mainly of large detached dwellings and more recent modern developments of housing for older people or people with a disability. Recent developments for older people or people with a disability adjoin the subject site to the east and on the opposite side of Pentecost Ave. Large detached dwellings are located to the rear and the west of the subject site.

[6]

Point of Law 14 The subject site is not identified as a heritage item in Schedule 7 of the Ordinance nor is it located within a Conservation Area identified in the Ordinance. It is however subject to draft (Heritage Conservation) Local Environmental Plan No. 28 ("the draft LEP"). The draft LEP seeks to amend the Ordinance by including the subject site in Schedule 7 of the Ordinance, thereby making the property subject to the heritage requirements in the Ordinance. In general terms, these requirements aim to retain the significance of the environmental heritage of the municipality by "conserving heritage buildings and their garden curtilage" and "conserving the visual vicinity of setting of heritage items". 15 By way of background, the council resolved to prepare the draft LEP on 16 December 2003, this being some 10 months after the development application was lodged in February 2003. This resolution was based on a report by Mr Paul Dignam, the council's heritage conservation planner. The December resolution of the council also sought an independent heritage assessment. The draft LEP was exhibited between 2 February 2004 and 18 March 2004. The exhibition resulted in one submission from the applicant objecting to the draft LEP. The matter was further considered by the council in a report by Mr Dignam on 18 March 2004. This report contained the independent heritage assessment prepared by Mr Graham Brooks. This assessment stated that "based on analysis of available information it is considered that the subject house does not meet the minimum entry threshold as a heritage item in the Ku-ring-gai Planning Scheme Ordinance". The report also contains references to discussions with heritage consultants Godden Mackay Logan where, apart from other matters, the heritage significance of the garden was raised. Notwithstanding the assessment by Mr Brooks, the report recommended the council adopt the draft DCP and submit the draft plan to the Minister. Most recently, a Rescission Motion was lodged by three councillors to rescind the adoption of the draft LEP. At the time of the hearing, the Rescission Motion had not been heard. 16 During the course of submissions the applicant raised a point of law concerning the effect of the respondent's draft LEP as follows:- Are the provisions of draft LEP 28 a relevant consideration to the assessment of a development application for SEPP 5 development in Ku-ring-gai Municipal Council local government area? 17 The applicant submits that the provisions of SEPP 5 comprise a comprehensive code for all development being carried out under such Policy. The aims of SEPP 5 which include the provision for housing which meets the need of older people or people with a disability is stated to be achieved, inter alia by cl 3(2) thereof:- (a) setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy, and 18 The applicant submits that a draft LEP is not a "Environmental Planning Instrument" as defined in s 4 of the Environmental Planning and Assessment Act 1979 ("EP&A Act"). Clause 10 of SEPP 5 provides:- This Part allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this Policy. 19 The applicant refers to cl 5(3) of SEPP 5 which provides:-

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And cl 19(1) of SEPP 5 which provides:- (1) If development to which this Policy applies is proposed to be carried out in a heritage conservation area or in the vicinity of a heritage item and the area or item is identified as being of State or regional heritage significance in another environmental planning instrument, the consent authority, before granting development consent, must notify the Heritage Council of New South Wales of its intention to grant development consent and must take into consideration any comments received from the Heritage Council within 28 days after the notification is given 20 The applicant submits that the Policy suggests that unless demolition of a heritage item listed in an environmental planning instrument is proposed or development in the vicinity of a heritage conservation area is involved, heritage significance is not a relevant consideration for the purposes of a development being carried out pursuant to SEPP 5. 21 The council submits that the Court is entitled to consider the provisions of the draft LEP. It has been placed on exhibition and now only awaits the Minister's approval. Accordingly the council submits that the making of the LEP is certain and relies upon the decision of this Court in Walker v North Sydney Council (2000) 110 LGERA 397. In Walker the Court took into consideration in its assessment pursuant to s 79C of the EP&A Act that the making of a draft LEP was imminent. 22 The council submits that cl 10 of SEPP 5 does not operate so as to exclude considerations under s 79C of the EP&A Act, and that the Court must take the provisions of the draft LEP into consideration. 23 The Court observes that the provisions of SEPP 5 were formulated for a specific purpose, namely the increase the supply and diversity of housing which meets the needs of older people or people with a disability. Clause 10 is clear and unambiguous. It provides that Part 2 of SEPP 5 prevails over any other environmental planning instrument, provided the development is carried out in accordance with such Policy. Clause 10 also has the effect of limiting the considerations arising under s 79C(1)(a) in that the provisions of SEPP 5 prevail over the provisions of any other environmental planning instrument or of any draft thereof. 24 Protection is provided to heritage items as provided by cl 19(1) of SEPP 5. The dwelling currently erected upon the subject land has not been classified as a heritage item for the purpose of cl 19(1). 25 It follows that the draft LEP is not consideration which is relevant to the Court's assessment of the development application. Heritage 26 Ms Sheridan Burke a conservation planner provided evidence for the council. The council also relied on the heritage assessment carried out by Mr Dignam. Mr Trevor Howells and Mr Robert Staas, both architects and conservation heritage consultants provided evidence for the applicant. Further evidence was provided by Mr David Taylor, a conservation landscape architect. The applicant also relied on the heritage assessment carried out by Mr Brooks. Each provided comments on the assessment of the heritage significance of the subject using the criteria in the document Assessing Heritage Significance produced by the Heritage Office. These can be broadly described as:

Criterion (a)- Historic:- Evolution
Criterion (b)- Historic: - Association
Criterion (c)-Aesthetic Significance
Criterion (d)-Social Significance
Criterion (e)-Research Potential
Criterion (f)-Rarity
Criterion (g)-Representativeness

[10]

The existing building 29 The original report prepared by Mr Dignam has been largely overtaken by more recent research contained in the statements of the other experts. It does have some relevance in that it was the basis for initiating the process of listing the subject site as heritage item. Relevantly, it states that "it is difficult to prepare a definitive statement of significance". Notwithstanding this he concludes by saying that:- …the property is worth keeping as a good representative example of a local interwar heritage item. Further research should be done to reveal possible links with the noted architect Aley or other architects of the period if Aley did not design the house. Investigations into the Pymble Golf Club and the former occupants Harry Sutton should be undertaken to fully explore this aspect of significance. 30 With the benefit of further research it was generally agreed that the dwelling was not the work of Aley or any other prominent architect of this time. Mr Howells took this further and suggested after a careful inspection of the interior fabric and external details the evidence suggests that the house is most likely the design of a builder rather than an architect. Examples of the inconsistent detail are set out in his statement and were shown to the Court on the site view. Mr Brooks sums up the applicant's position by stating that the subject building displays a number of design elements of the Mediterranean - Georgian style, however in comparison to some of the listed (and even some not listed) buildings, the subject house is not a sophisticated example of the style, lacking in any interesting details and complexity of geometric form evidence in the listed examples. It exhibits features that are fairly common in the municipality (some of them still widely used in Ku-ring-gai ) and is considered and undistinguished example of the Mediterranean - Georgian style. 31 This, however was not a conclusion accepted by Ms Burke who suggests that this is not unusual as significant works often remain unnoticed until seminal research is undertaken. She notes the use of finer trims and fairfaced plastered reveals is more exacting of workmanship, requiring greater time and care and not associated with an everyday builder. In her opinion, this suggests the involvement of an architect pursuing "style".

[12]

Special associations 34 In addition to the possible association with prominent architects and Jocelyn Brown, Ms Burke identifies the subject site as constituting as significant demonstration of the cultural history of Ku-ring-gai. It demonstrates the continuing development of the North Shore Railway spine for garden suburbs. The house was constructed for the Harry Sutton family, who were active in local community affairs. An association with the Pymble Golf Club was also identified. 35 Mr Staas states that there are no established associations of significance identified for the subject site. No significant event or occupation of the place has been established in any research that suggests a level of association that would warrant the listing of the property is a heritage item. 36 In balancing the evidence of the numerous experts, I prefer the conclusions reached by Mr Staas, Mr Howells, Mr Taylor and Mr Brooks. While the building displays some characteristics of the Inter War Mediterranean - Georgian style I accept that it is not an overly sophisticated example of this style. Contemporary alterations have also diminished its significance although I agree it is fundamentally compromised. The great weight of evidence supports the conclusion that it was not designed by an architect of any notoriety. Mr Brooks assessment thoroughly addresses the architects that were considered to potentially have some claim to the design. All were discounted by Mr Brooks and his conclusions were not challenged. 37 Any association with Jocelyn Brown is at best limited and restricted to the sun terrace. The location of this feature was seen as being inconsistent with her other landscape designs through a lack of internal symmetry as well its relationship with the dwelling. I agree with Mr Staas and Mr Taylor that the significance of this feature must be diminished by its context and the lack of original garden. For comparison, the Court was provided with nearby and more intact examples of her work. 38 Any special associations with the Harry Sutton family and Pymble Golf Course are, in my view peripheral and do not support the retention of the dwelling on heritage grounds. 39 On the basis of the evidence provided to the Court, the original reasons for the draft LEP have been further investigated and have been found to be unsupportable. Even with the additional heritage matters, such as the garden being raised, there are no heritage reasons why the building should not be demolished. In any event, the heritage provisions in the Ordinance do not prohibit the demolition of a heritage item identified in Schedule 7.

[16]

Neighbourhood amenity and streetscape character 47 Clause 25 of SEPP 5 states that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles. Clause 25(a) addresses neighbourhood amenity and streetscape and states that the proposed development should: (i) contribute to an attractive residential environment with clear character and identity, and (ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and (iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and (iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site's land form, and (v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development, and (vi) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and (vii) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and (viii) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape. 48 Mr Harvey Sanders provided evidence for the council and Mr Neal Ingham provided evidence for the applicant. Both are town planners. Dr Richard Lamb, a visual impact consultant provided additional evidence for the applicant. 49 Mr Sanders states that the proposed development fails to satisfy all of the above criteria. In his opinion, the proposal does not contributed to an attractive residential environment primarily because the proposed bulk and scale of the development is not compatible with the adjacent development. It does not maintain reasonable neighbourhood amenity through inappropriate building form and siting. While being technically compliant, a significant part of the northern elevation facing Pentecost Street has the visual appearance, bulk and scale of a three-storey structure. This results in an unsympathetic form of development when viewed from neighbouring properties. 50 Mr Ingham takes the opposite view. He states that the proposed development has a clear character and identity that is compatible with surrounding development. It creates a character that is compatible in scale with the development on the adjoining site to the east and is not on uncharacteristic of other development in locality generally. The proposal has a two-storey facade that is setback to satisfy the building line of adjoining development. It is being developed into buildings with a separation that will be able to be understood from the properties to the east and west, thereby ensuring compatibility with these buildings. 51 Dr Lamb supports the evidence of Mr Ingham. He states that while the development will appear different to the prevalent detached dwellings located within the surrounding streets, it does not follow that it is necessarily has an unacceptable appearance. In his opinion the proposal is appropriate when viewed within the streetscapes and respond adequately to the landscape quality of locality. He identifies the design, how it addresses the street, the character of the proposed landscaping, the setbacks and the articulation of the buildings as meritorious aspects of the proposal. 52 With the benefit of the comprehensive view of the subject site and surrounding areas, I prefer the evidence of Mr Ingham and Dr Lamb. There is little doubt that the existing dwelling on the subject site provides a strong presence in the streetscape and forms part of the character of the area. However, this character has evolved over recent times to include other SEPP 5 developments. I agree with Dr Lamb that these forms of development are different to the previously dominant residential dwellings that existed in the area but this does not necessarily make this form of development unsuitable. In my view, it is a question of an appropriate design within the parameters set by SEPP 5 and in this regard the proposal is acceptable. 53 The character of an area is made up of a number of elements such as front and side setbacks, landscaping, design, height, bulk and massing. Mr Sanders expressed a concern that the bulk of the eastern building was exacerbated by its similar height to the adjoining SEPP 5 development. In his view, the proposed building should be lower to reflect the decreasing natural ground level at this point. While Mr Sanders concerns may appear to have some merit I am not convinced that they have sufficient substance to warrant the refusal or amendment of the application based on the requirements in cl 25(a). The separation between the buildings in question, the landscaping that is to be provided, the fact that the highest point on the subject building is located some distance from the street and importantly, the proposals compliance with the height control within SEPP 5 are also relevant considerations. 54 Overall, and in accordance with cl 25(a), I accept that the proposed development has given adequate regard to neighbourhood amenity and streetscape character.

[17]

Overlooking 55 Overlooking was an issue raised by Mr and Mrs Kavanagh who reside at the dwelling to the west of the subject site (52 Pentecost Ave) and Mrs Thornton who reside in the dwelling to the rear of the subject site (9 Fairway Ave). In addressing the overlooking concerns, an estimate was made of the location of the proposed buildings and any relevant feature on the adjoining properties. 56 Clause 25(b) of SEPP 5 addresses visual and acoustic privacy and states:- The proposed development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by: (i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and (ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths. 57 The concerns from 52 Pentecost Ave related to the opportunities for overlooking into the rear yard, the windows along the elevation of their dwelling adjoining the subject site and the pool area located in the front yard. With the benefit of the site view and considering those matters set out in cl 25(b), I accept that the proposed development has given sufficient regard to the question of visual privacy. The rear yard is largely protected from overlooking by proposed boundary fencing. The east facing windows of unit 6 are some 12 metres from the boundary and provide adequate separation. Additionally, views from these windows are partially restricted by the roof form of unit 5. The potential for overlooking into the windows of the adjoining property are again limited by the proposed boundary fencing on the ground level. The windows on the upper level of unit 3 are either high-level windows or are located at such an oblique angle as to make any overlooking unlikely. I note the inclusion of a 1.8 m high timber privacy screen to the terrace of this unit and the applicants proposal to extend this to further diminish the opportunity for overlooking to the pool area. I accept that this provides a reasonable attempt to reduce overlooking impact in this area. 58 The concerns from 9 Fairway Ave relate to the potential for overlooking from the rear deck for unit 6 and other windows in the southern elevation. With the benefit of the site view and considering those matters set out in cl 25(b), I accept that the proposed development has given sufficient regard to the question of visual privacy. The applicant proposes the construction of a privacy screen on the southern edge of the balcony to restrict any overlooking and I accept that this satisfactorily addresses this concern. The potential overlooking from other windows in this elevation is satisfactorily addressed through the separation distance and the provision of additional landscaping along the rear boundary.

[77]

The landscape works shall be completed prior to issue of final Certificate of Compliance and maintained in a satisfactory condition at all times.
Aboricultural Reporting Procedures - Appointment of Supervising or Site Aborist 40.1 A Supervising or Site Aborist to monitor and advise in regard to tree related issues is to be appointed. The nominated Arborist will supervise and maintain tree protection measures for the duration of construction. Any appointed successor to the nominated Site Arborist must be notified, in writing, to the Principal Certifying Authority with details of the date of transfer of responsibility. Reason - to ensure continuity of advice throughout the project period and to clarify a legally binding chain of responsibility in the event of future tree decline or failure. 40.2 The Site Aborist is to prepare a Site Specific Tree Management Plan. The plan is to consider all matters assessed by the appointed Site Arborist as relevant but must as a minimum incorporate all tree related conditions contained elsewhere in these conditions of consent. The Site Tree Management Plan is to be submitted to Council for approval prior to the issue of a Construction Certificate for any site works including any demolition works. Reason - To ensure that no matters relevant to tree protection are overlooked. 40.3 The Site Arborist is to carry out independent bi-monthly inspections during the construction period to ensure ongoing tree health and make reports as required following each inspection to the PCA and client in relation to all tree management issues. Reason - To promote communication and allow timely action to be taken if required.
Establishment of Areas for Tree Protection Zones Tree Protection Zones are to be established to protect the Critical Root Area of the following trees. The Critical Root Area shall be defined as outlined and dimensioned on the following figures: Jacaranda (Tree 2) Figure 1 Sydney Blue Gum (Tree 3) Figure 2 Liquidambar (Adjacent property to rear) Figure 2 Liquidambar (Street Tree) As per condition 88 Reason - To ensure that both site managers and PCA have a detailed plan to facilitate compliance.
Conduct of Tree Protection Zones 42.1 Tree protection fencing is to be installed at the boundary of each TPZ. Tree Protection Zone fencing must consist of posts set into the ground or supported by a freestanding base which itself is secured against sideways movement. This is particularly important in areas where site works or visitors might be tempted to move posts for "temporary" access. Mesh or wire between posts must be durable, highly visible and at least one metre high. 1.8m 'cyclone' style fencing at 2.4m post centers is recommended. Reason - To ensure that boundaries of TPZs are properly marked. 42.2 Tree protection fencing may be modified in accordance with the diagram at Figure 3. Reason - To ensure adequate pedestrian works access as required. 42.3 Unauthorised removal or disruption of the Tree Protection Zone fencing is to be considered a breach of the conditions of consent. Reason - To indicate that both site workers and PCA take tree protection measures seriously. 42.4 Prohibited within the TPZ are: · unauthorised access including access for vehicles or pedestrian traffic; · storage or stockpiling of materials; · excavation, levelling, soil removal, or work of any kind unless specifically approved or supervised by the Site Aborist; · incursion of pollutants, solvents, excess water or other material harmful to the protected trees such as silt, concrete, paint or mortar mix; · location of site sheds, or other temporary structures; · bitumen driveway will remain until building work is completed. Reason - To ensure that the most significant causes of tree damage and future decline or hazard formation are prevented. 42.5 TPZ fences are to remain in place until the end of construction when their removal is to be approved by the Site Aborist. Reason - To ensure any necessary access to TPZs is properly supervised and to prevent 'last minute' damage to trees or tree root zones. 42.6 The Tree Protection Fence is to display clear signs indicating the reason for the fence and action to be taken if access is desired. An example of such a sign follows:

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Reason - Site workers need to be made aware of the protection measures in place and the reasons those measures are required. 43. Action Regarding Roots at Boundaries of Tree Protection Zones Trial excavation and manual root pruning of any roots greater than 30mm in diameter that extend beyond each TPZ is to be carried out under the supervision of the Site Aborist. Such pruning may be carried out at the time of excavation for footings at the discretion of the Site Aborist. Reason - Poor root pruning or other root damage can cause long-term tree decline and liability due to decay many years after project completion. 44. Works Within Tree Protection Zones 44.1 Removal of existing unwanted materials, including asphalt paving or undergrowth, shall be carried out by hand under the supervision of the Site Aborist. Reason - The use of heavy machinery within the Critical Root Areas will have a significant detrimental affect on the health of the retained trees. 44.2 Any landscaping or paving works within the Tree Protection Zones specified at condition 41 shall be designed and constructed following a review by the Site Aborist to ensure that site/soil conditions sufficient to protect the existing areas for healthy root growth are maintained. The Site Aborist shall issue a compliance report stating that such action has been carried out to the PCA as part of the periodic arboricultural reporting procedures. Reason - Common landscape specifications, including the cultivation or ripping of subgrades, compaction beneath paved areas, strip footing for retaining walls and introduction of hard surfaces will all have a detrimental affect on retained trees. 44.3 Stormwater and drainage works as indicated in W.P Brown & Partners Pty Ltd dated 24 March 2004, ref: C01, Rev 02 shall be implemented. Rating should be as close to building alignment as possible. All trenching to be hand dug with no severance of roots greater than 50mm. 45. Additional Treatments With Tree Protection Zones 45.1 Application of mulch in the form of 75-100 min layer of composted leaf mulch is to be applied under the direction of the Site Aborist within the area of each TPZ. Reason - Mulch will assist in stabilising soil moisture and surface temperature conditions. Appropriate application of leaf mulch is also of benefit for trees in the long term. Among other advantages it provides enhanced conditions for beneficial soil organisms, may reduce compaction of surface soil layers and acts as a slow release source of nutrients. 45.2 Weeds shall be removed from the TPZ during the construction period Reason - competition from grass and weeds will lead to additional stress in trees already impacted by site works or past soil conditions. 45.3 The Site Aborist shall monitor soil conditions to ensure adequate soil moisture. A watering regime shall be implemented or adjusted as part of the reporting conditions. A drip irrigation system based on a dedicated tap supply is highly recommended. Reason - Imposition of a new drainage and moisture regime on the root system of retained trees may cause significant stress, but may be moderated by supplementary irrigation. 45.4 Application of additional root or soil treatments such as root hormones, nutrients or fungal inoculants is to be carried out as determined by the Site Aborist. Reason - Additional measures to maintain the health of retained trees may be required, unapproved measures including excessive nutrients may lead to increased stress. 46. Additional Tree related Matters Any pruning of the canopy of retained trees is to be carried out under the supervision of the Suitably Qualified Aborist and in accordance with the guidelines of AS4373 - 1996 The Australian Standard for Pruning of Amenity Trees. Reason - To ensure that any pruning necessary is carried out in an industry standard manner.