Yam v Ashfield Municipal Council

Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 CASES CITED: Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) LGERA 195; [2003] NSWCA 289 Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167

APPLICANTS: Mr J Johnson (barrister) SOLICITORS: Luk & Associates LEGAL REPRESENTATIVES:

RESPONDENT: Ms P Burns (solicitor) SOLICITORS: Maddocks Lawyers

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10506 of 2009 Austin and Lindy Yam v Ashfield Municipal Council

JUDGMENT 1 The applicant in these proceedings is seeking to demolish the existing dwelling house and erect an attached dual occupancy on the land known as No. 8 Ormond Street, Ashfield. Site and Environs 2 The subject site is Lot 37 section 13 in DP439. The site area is about 923 square metres with a frontage of 15.2 metres and the topography of the site falls gently to the rear. The site is located on the northern side of Ormond Street bounded by Bruce Street to the west and Pembroke Street to the east.

3 Currently on the site is a dwelling house originally constructed soon after 1879 when the land was subdivided as the Underwood Estate. Extensions to the dwelling were carried out around 1890 and further alterations and additions were made prior to 1930 and the building was converted to three flats. however it has been extended. The original front portion is single storey of rendered brick construction whilst the rear two storey addition consists of brick and fibro. 4 The Council has identified two trees on the site that is the Sydney Red Gum near the rear boundary and a Camphor Laurel tree near the western boundary approximately two thirds into the block.

5 The precinct in which the site is located has a variety of dwelling types, forms and architecture constructed over different periods, ranging from single bungalows to semi-detached dwellings, dual occupancies and residential flat buildings. The subject site together with number 4 and 6 were the first homes in the area with a large number of dwellings built later in the inter war period. The residential flat buildings in the area were erected in about the 1960's to 1980's. 6 The residential building at No. 2 Ormond Street is a heritage item constructed in about 1890 as a substantial two storey dwelling and now converted into a number of flats. The adjoining house to the south at no 6 is similar in plan to the subject premises although it's presentation to the street and architectural elements are different. 7 To the north of the subject site is a residential flat building of three storeys in height erected in about the 1970s. On the opposite side of Ormond Street there is also a variety of dwelling forms including single and two-storey dwellings and dual occupancy development.

Statutory Planning Controls 8 Under the Ashfield Local Environmental Plan 1985 the subject site is zoned Residential 2(a). Development that is permissible in the zone includes dwelling houses, child-care centres, home industries and occupations and a limited number of other uses. Two dwellings on a single allotment are permissible by virtue of cl 13.

9 The special provisions for dwelling houses are contained in cl 11 and the Council shall not consent to development for the purposes of a dwelling house on an allotment of land in zone 2(a) unless: "(a) where the allotment is hatchet-shaped it has an area of not less than 700 square metres, or (b) in any other case: (i) the allotment has an area of not less than 500 square metres, and (ii) the allotment is not less than 15 metres wide at the front alignment of the proposed dwelling house. The subject site complies with 15.2 metres and at the application is not for what subdivision."

10 Clause 13 provides for dual occupancies in the residential 2(a) zone and this can be achieved by: "(a) alter or add to a dwelling house erected on allotment so as to create two dwellings, or (b) erect two attached dwellings on allotment, or (b) erect two dwelling houses on allotment, or (d) or erect a second dwelling house in addition to one all ready and erected on allotment, or (e) alter or add to a dwelling house or to any other building erected on allotment so as to create two dwelling houses. "

11 Sub clause 2 provides for dual occupancy development in a heritage conservation area only if that development will result in two attached dwellings.

12 Sub clause 3 states that "the Council may refuse consent for any such development if it considers the proposal will have an adverse impact on the significance of any heritage conservation area or heritage item." 13 The heritage provisions are contained in Part 4 and the aims include: "(d) to ensure that any development does not adversely affect the heritage significance of heritage items and conservation areas and their setting is as well as landscapes and streetscapes and the distinctive character that they impart to the land to which this plan applies."

14 Clause 32 is for the protection of heritage items and heritage conservation areas and consent is required for demolishing, defacing, damaging or removing a heritage item or a building work or relic within a heritage conservation area. Sub clause 3 requires an assessment of the conservation area and consideration to the extent to which the carrying out of the proposed development would affect the heritage significance of the area.

15 Clause 37 requires "an assessment of the likely effect of the proposed development on the heritage significance of a heritage item, heritage conservation area … and on it's setting when determining an application for consent to carry out development on land in its vicinity".

16 Schedule 7 lists the heritage items and conservation areas in the Ashfield Local Government Area and the house at No. 4 Ormond Street is listed as a heritage item.

17 The draft amendment No. 105 to the LEP aims to identify additional heritage items and conservation areas including the Federal-Fyle conservation area and the aim is to ensure that any development does not adversely affect the heritage significance of the conservation areas. The draft plan proposes that numbers 2 to 8, inclusive, in Ormond Street be included in the Federal - Fyle conservation area.

18 The 'inventory sheet' for the Federal - Fyle conservation area reads as follows: "The name offered for this conservation area is an attempt to suggest the historical complexity of its origins … the area is an enlargement of the existing Oak Street conservation area which currently includes 36 houses in the street. Essentially the extension consists of all the properties addressing Wallis Street. Federal Avenue and Bruce Street as well as five properties at the west end of Ormond Street. In fact this augmented conservation area contains all the remaining sites zoned 2(a) which address those internal streets and are contained within the space bounded by Orpington, Elizabeth Pembroke and Liverpool Road. … The properties in Nos. 1, 2, 4 6 and 8 Ormond Street are included in this conservation area because of their visual closeness and affinity and because, being the only remaining ones zoned as residential 2(a), reckoned to make a positive contribution to the character of the area. … The presence of a few intrusive buildings reflects the looseness of past development controls as illustrated by the presence of multi-dwelling structures in a single dwellings zone, indicating an unsatisfactory consideration of the overall context of the area. It must be stressed that the overriding issue is the preservation and restoration of the low scale residential character of the area."

19 The key to the conservation area rankings states that Number 2 "represents a building which contributes to the character of the area but its significance has been reduced". The ranking of Number 3 is "a building whose impact on the heritage character of the area is neutral". Number 4 Ormond Street is described as Victorian Italianate modified with a ranking of 2 and the comments are two-storey house converted to six units. For Number 6 the inventory states: architectural style indeterminate with a ranking of 3 and a comment of possibly part of the building at number four. Number 8 the subject site is described as Victorian indeterminate, modified with a ranking of 2.

20 The Heritage Conservation Development Control Plan 2007 has a number of objectives including: '(b) to allow necessary change, but only where it will not remove or detract from those special qualities. (e) to ensure that in those conservation areas where new buildings can be constructed, they are carefully designed to fit in with the heritage significance and character of the particular conservation area."

21 The DCP references Burra Charter and its principals that include the setting of an item.

22 For a conservation area the DCP states: "…is an area in which the historic origins and relationships between the various elements create a sense of place that is worth keeping. It is the areas history, which provides the principal key to which significance, some of Ashfield conservation areas representative in demonstrating the characteristics typical suburban development of the time… "

23 Under the heading of aesthesis for design considerations the DCP contains two main principles applied in determining satisfactory visual qualities which are: "(a) being sympathetic to context, and (b) having a high standard of architectural composition."

24 The Development Control Plan for Houses and Dual Occupancies in s 3 states "….attached dual occupancies are preferred (mandatory in heritage conservation areas). This is because both dwellings can be designed to appear as one large dwelling, and there are no "isolated " houses placed where there would otherwise be rear gardens. Each dwelling can also have a front address and rear access to its own private garden. This fits in with the "pattern of development" and the "single house" look."

25 The design principles in the DCP includes sympathetic building scale requirement that a proposal must demonstrate that it provides an appropriately sympathetic building scale and this is one which takes architectural queues in terms of size, bulk, length and breadth, height and volume of a building or an element, in relation to neighbouring buildings, as well as in relation to the scale character of the streetscape, which includes the scale of the predominant building styles. 26 The DCP also contains aesthetic design principles described as follows: " 3.1 Aesthetic considerations are those associated with the perception of desirable visual properties, including scale. High quality aesthetics require an acceptable standard of composition of building elements, materials and colours, including relationships with the context of the proposal. Although a matter of preference for aesthetics, or architectural style, is largely subjective, there are two main principles that can be applied in determining satisfactory visual qualities, which are (a) being sympathetic to context, and (b) having a high standard of architectural composition

27 A sympathetic aesthetic quality is one having visual relationships that are appropriate sensitive and nine and aesthetically pleasing implying concordance with the context of a building or elements. The DCP requires new houses to be sympathetic to context.

28 The Council's Stormwater Management Code 1995 requires all stormwater drainage connecting to Council's drainage systems is to be gravity means. The policy states that: " Without a gravity stormwater drainage system being provided development consent will not be granted. Written consent to the in acquisition of an easement is to be obtained from adjoining owners and provided should Council with the development application. … Site drainage systems will require inter-allotment easements over downstream properties where the drainage traverses any other private property to connect to Council's drainage system ". Contentions 29 The Council tendered a statement of contentions as follows: Streetscape and Character impacts

The form, scale, proportions and materials of the replacement building (the dual occupancy) are unsympathetic within the context of the locality, the residential character of the locality and will negatively detract from the streetscape. As such the development fails to satisfy Sections 2.2, 3.1 and 3.2 of Part C15 of the ADCP 2007.

The proposal will detract from the significance and character of the Draft Federal-Fyle Conservation Area (Clauses 32(3) and (5) of the ALEP 1985 and Draft ALEP 1985 Amendment No. 105).

(a) The demolition of the front portion of the existing building will result in the loss of a contributory item within the Draft Federal-Fyle Conservation Area. (b) The form, scale, proportions and materials of the replacement building (the dual occupancy) will detract from the significance and character of the Draft Federal-Fyle Conservation Area.

The form, scale, proportions an materials of the replacement building (the dual occupancy) will detract from the significance and character of the heritage item at 4 Ormond Street (Clause 37 of the ALEP 1985).

The removal of the significant Sydney Red Gum and Camphor Laurel trees located within the rear yard of the property will negatively detract from the aesthetics, character and ecology of the local area.

The proposal fails to satisfy Council's Stormwater Management Policy. Particulars: (a) stormwater for the development is not to be drained via gravity required by section 4.5 of the Stormwater Management Policy. (b) A private easement through a neighbouring property to allow to the drainage of stormwater has not been obtained in accordance with sections 4.5 and 4.8 of the Stormwater Management Plan. Evidence 30 The Court met on site with the parties including the experts and also heard from resident objectors including the owner of the adjoining property at number 6 Ormond St and the owner of number 4, the heritage item. The concerns expressed included the fact that a two-storey building would not respect the heritage and streetscape of the area and be out of keeping with the streetscape having regard in particular to numbers 4 and 6. Concern was expressed about the demolition of the existing house on the subject site as "each represented a slice of beauty" from a past era that adds beauty to the suburb and that it should not have been allowed to deteriorate. Concern was also expressed about the privacy and overlooking to the adjoining dwelling at number 6.

31 On behalf of the respondent Council evidence was given to the Court by Mr Robert Moore, a consultant heritage architect and Mr Andrew Johnston, the Council planning officer. For the applicant Mr Greg Patch, a consultant heritage architect gave evidence to the Court. The experts also prepared a joint statement of evidence and gave concurrent evidence.

32 On the issue of the form and scale of the proposed dual occupancy building Mr Patch is of the opinion that "the area contains a diversity of building types and forms. The proposal is essentially a pair of two-storey semi-detached houses which is common in the area and the fact that it is two-storey in scale will provide a transition between the larger residential flat buildings and the single dwelling houses". Mr Moore considers that "the form of the building as two houses side-by-side with frontage garage doors is unrelated to the buildings of the established setting and will make this building obtrusive and uncorroborative of the area's values" Mr Johnston states that " the replacement building should take its cues from the existing housing stock in the area not the residential flat buildings and that a more simplistic building with less emphasis on garages and balconies would have less of an impact on the streetscape".

33 For the issue of the materials and finishes the experts agreed that these could be refined with conditions and indeed such a condition was forwarded to the Court following the hearing. Nonetheless Mr Moore made the comment in Court that of themselves they do not make the proposal acceptable and acceptable materials can only be acceptable when coupled with acceptable design.

34 Mr Patch is of the opinion that the demolition of the existing building is acceptable as it has limited status and is no longer structurally sound. Mr Moore is of the opinion that that "the structural assessment of the building is partisan and self-serving and that the condition of the building is not terminable and a consequence of poor maintenance. .... The existing dwelling can be meaningfully repaired and retained as part of a redevelopment of the site with the new house being located at the rear of the existing house. "

35 On the issue of form, scale and proportion of the proposed building detracting from the character of the proposed conservation area Mr Patch considers that the scale is appropriately transitional between the residential flat buildings and single dwelling houses and the proportions are compatible and sympathetic with buildings in the environs. He said that there are doubtless innumerable alternative designs but it is a matter of whether the proposal is sympathetic and compatible with the context and in his opinion it is. On the other hand, Mr Moore is of the opinion that the proposed building will detract from the character of the area and that a more suitable design for two houses front and rear would better relate to the streetscape and neighbouring buildings and garage doors in the front elevation could also be avoided.

36 With respect to the impact on the heritage item at number 4 Mr Patch considers "there is minimal interaction …given the separation in the context in which both sit and the building stock of the area is such that the replacement building is compatible with the general character of the area". Mr Moore is of the opinion that: "the character and contribution to the locality of number 4 is corroborated by the presence of numbers 6 and 8. They formed a distinct Victorian group. The proposed replacement building will detract from and weaken the diversity and late 19th early 20th-century character of the locality. Its compatibility is poor."

37 During the concurrent evidence Mr Patch emphasised the mixture of dwelling types, forms and periods and in his opinion the proposed two-storey building will be transitional between the residential flat building and numbers 4 and 6. In his opinion numbers six and eight do not read as a group of Victorian houses even though they are similar and are not of great significance. Furthermore he is of the opinion that the style of the proposed development is neutral and reflects the roof of Californian bungalows. 38 The experts agree that removal of the trees is partly resolved in that the Sydney Red Gum at the rear can be retained subject to redesign of the stormwater. The Camphor Laurel tree in Mr Patch's opinion would be better replaced by a more appropriate less invasive species and Mr Moore considers the Camphor Laurel should not of itself determine the outcome. Mr Johnston is of the opinion that the removal of this tree would be acceptable with replacement tree plantings.`

39 The weight that should be given to the draft LEP that includes the subject site in the Federal-Fyle Conservation Area was discussed in concurrent evidence. Mr Johnston is of the view that Council must take the draft into account because it has not been repealed however on cross-examination he agreed he had not seen a draft instrument repealed. When questioned on whether the draft ALEP 105 is "imminent and certain" Mr Johnston said that the Council places weight on it and proposes to progress it in the the Ashfield consolidating template LEP currently in the course of preparation.

40 Mr Patch does not agree with the extension to the conservation area shown in the draft LEP and he is of the opinion that Amendment 105 is of dubious status, "a zombie", and in his opinion it is less and less relevant with age. Although he acknowledges that as a draft instrument one is obliged to consider it.

41 The applicant tendered an assessment report for a development in Liverpool Road Ashfield and it is it noted that the Council officer there stated "the Department of Planning has advised that LEP amendments made prior to March 2006 may no longer be considered in the assessment of development applications however Council has taken the position that draft LEP amendments should be considered as no formal legal instrument has been introduced at this stage to repeal them".

42 The draft LEP was exhibited in early 2004 but was not gazetted. Rather the Council seeks to include its provisions in the template LEP and in the Exhibit 10 the timetable for the new LEP estimates gazettal in April 2011. A letter from the Department of Planning dated 14 October 2009 states in reference to the creation of additions to urban conservation areas the Department acknowledges this is an important element in Council's future planning. At the same time the letter states: "However the Department is faced with an ever-increasing number of such LEPs throughout the metropolitan area which are prepared in isolation of the many other competing elements which contribute to a strategic approach to land-use planning… the Department has decided that draft LEPs for urban conservation areas will not be progressed to finalisation until the Department has determined its position in consultation with the heritage office. " Findings 43 In my assessment I have had regard to all the evidence to the Court including: the site inspection; the evidence of the experts; and the statutory planning regime.

44 On the question of the weight that should be given to the draft local environmental plan, amendment 105, I have given it little weight under section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979, although as a draft instrument I recognize that it must be taken into consideration in determining a development application. My reason for attributing limited weight to the draft plan under this section of the Act is that based on the evidence to the Court the gazettal of this draft plan could not be said to be 'imminent or certain'.

45 However, I have not dismissed the fact that the documents represent the Council's planning intentions for the area and its strategic direction to extend the conservation area based on a heritage study and inventory that has been through a public consultation period and consistently referred to by the Council and indeed noted on the section 149 certificates for the subject site. The judgement of his honour Lloyd J in Carstens v Pittwater (1999) 111 LGERA 1 guides my assessment where his Honour states at [25]: "I thus conclude that the matters for consideration listed in 79C (1) are not the only matters to which a consent authority may have regard. The listed matters are those, which a consent authority must consider. The consent authority may also take into consideration other matters not including those, which are listed. Those other matters include, in the public interest. This does not mean that the decision maker may take anything into consideration. The relevant considerations are confined so far as the subject matter, scope and purpose of the act and any environmental instrument allow. The draft DCP are and the values statement in the present case relevant documents which relate to the matters…" 46 In my assessment of the application currently before the Court the draft amendment 105 is a relevant matter in the 'public interest' and it is on this basis that I have given it weight, although not determinative, in my assessment. Furthermore the outcomes of the study are " within the range of sensible planning options".

47 In Stockland Development Pty Ltd v Manly Council (2004) NSWLEC 472 McClellan CJ in this Court stated: "… in my opinion the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course the intrinsic attributes of the policy may be given significant weight but the weight is not dependent on the end being included in a policy it can be established in other ways. However the position it would be markedly different if the policy is the result of detailed consultation with relevant parties including the community and the owners have affected land, and affects outcomes which are within the range of sensible planning options. His honour then provides a number of matters to consider when determining the weight to be given to planning policy." 48 It was submitted on behalf of the applicant that the draft amendment 105 is not a policy, however I am satisfied that it represents Council's planning intentions and " relevant material" and in this regard I refer to the Court of Appeal judgements where his honour Spigelman C. J. at 81 in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA289 said " a consent authority may range widely in the search for material as to the public interest".

49 At the same time even if I did not give any weight to the draft LEP the proposed development in my merits assessment does not warrant approval because it does not provide a reasonable fit and respond to the streetscape. The DCP for houses and dual occupancies requires proposed developments to be sympathetic to the neighbouring buildings as well as in relation to the scale and character of the streetscape and demonstrate a sympathetic relationship of the proposal to its context. I recognize there is a variety of housing forms in the locality however, this portion of Ormond Street with the heritage item at number 4 and the dwelling at number 6 requires a more sensitive approach to the design of an appropriate dual occupancy development and the process of design in these particular circumstances must be informed by the context. In this regard I am persuaded by the evidence of Mr Moore and Mr Johnston.

50 I have not ignored the RFB at no12-14 Pembroke that adjoins the site to the north however, an assessment of the 'front streetscape elevation' as shown in the plans before the Court clearly shows the significant separation provided by the generous set back of the RFB to the subject site which is appropriate and acknowledges the zone interface and the RFB positions more of its bulk towards the corner away from the single storey dwelling houses at 6 and 8 Ormond Street. I do not accept the evidence of Mr Patch that the proposal provides for an appropriate transition but in fact brings a bulky building within much closer proximity of number 6. In this regard I agree with Mr Moore "the proposal does not seek any dialogue of reference… to the character of its intended context rather the design adopts a ubiquitous character and treatment… applied anywhere regardless of context, orientation, and prevailing built form and character in the locality".

51 As required by Zang V Canterbury City Council (2001) NSWCA 167 the court must give central focus and consideration to the Ashfield DCP 2007 recognizing that its provisions are not mandatory but discretionary having regard to the merit of applications that must consider the locality, including adjoining development. The DCP also includes aesthetic design principles that includes "relationships with the context of the proposal and having a high standard of architectural composition." The proposed dual occupancy design as shown in the plans is inconsistent with these principles.

52 Even if I give limited, or no weight to the draft amendment 105 I must consider the impact of the proposed development on the heritage item at number 4 as required by clause 37 of the LEP. I accept Mr Moore's evidence that " were number 8 to be demolished and this design built, the contribution of the strong grouping of three Victorian dwellings would be reduced to a weaker pair…the proposed development will reduce the sympathetic setting currently afforded for number 4 by the two adjacent homes. No 4 will be considerably more dominated by the proposed modern development if approved, given its unsympathetic scale and character, appearing to creep even closer to the older home."

53 In my merits assessment of the application I am not satisfied that the site is suitable for the proposed development under s79C(1)c. My reasons for concluding the development is inappropriate for the site is that the proposed building will not 'sit' comfortably in the streetscape by the presentation of a two storey, mirror image dual occupancy with two garages and driveways. 54 I agree with the council that the site is capable of a dual occupancy development however the design must be informed by its context. And I am also not persuaded that the front portion of the house could not be retained and incorporated into the design of a dual occupancy development of the site. The configuration of this lot is proportionally long compared to the width and provides an opportunity for a dual occupancy development utilizing the rear for a second dwelling. While I accept the submission made on behalf of the applicant that there may be innumerable alternatives and it is a matter of whether this proposal is satisfactory. In the circumstances of this case the design and configuration of the proposed building is unacceptable and not informed by its context. 55 The presentation in the context of this street requires a design that is less intrusive and more compatible having regard to the adjoining dwelling at number 6 and the heritage item at number 4. I accept the evidence of Mr Moore and Mr Johnston that the proposal should not take its cues from the residential flat buildings. Despite other less fortunate developments that have occurred the character of this street is still one that requires a more sensitive approach to the design of an infill dual occupancy development. 56 Accordingly on the basis of my merits assessment above the development application for demolition of the existing building and the erection of a dual occupancy development does not warrant approval.

Orders 1. The appeal in respect of the property known as No. 8 Ormond Street, Ashfield is dismissed. 2. The development application No. 10.2008.010.1 submitted to Ashfield Council for a dual occupancy development on the above site is determined by the refusal of consent. 3. The exhibits are returned to the parties.

J S Murrell Commissioner of the Court

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