Zammit v Inner West Council

Land and Environment Court (NSW)|2019-02-08

Introduction

The Zammits are the owners of 39 Tintern Avenue, Ashfield. Dylan Zammit is appealing the deemed refusal of their application DA10.2017.257.1 by the Inner West Council, pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) for alterations and additions to the rear of the existing dwelling, including demolition of the existing car port, kitchen, dining, laundry and deck areas and construction of a new 2 storey addition, garage, landscaped garden, pool and rear deck.
The appeal was subject to conciliation on 7 February 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and proceeded forthwith to hearing on 7 - 8 February 2019, pursuant to s 34(4) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.
At the commencement of the hearing, leave was granted to the Applicant to rely on amended architectural plans (Ex A), amended landscape plans (Ex B), and amended stormwater plans (Ex C). The amended plans were generally regarded as responsive to the contentions, but did not resolve the principal issues in dispute.

Planning Framework

The site is zoned R2 Low Density Residential in the ALEP and the proposal is permissible with development consent.
The site is not a heritage item, but is located within the C21 Tintern Road Ashfield Heritage Conservation Area. Consequently, the objectives of the ALEP relating to Heritage Conservation are relevant, and are in the following terms at cl 5.10; (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Ashfield, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance.
Clause 5.10(4) is of particular relevance to the Court, acting in the role of consent authority, and requires that; The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. ...
The Inner West Comprehensive Development Control Plan 2016 (DCP) applies to the site. Chapter E1 Heritage Items and Conservation Areas identifies the scope and significance of the C21 Tintern Road, Ashfield Heritage Conservation Area ('Tintern Road Conservation Area'), which extends in a northerly direction from Clissold Street to the south, to approximately half way up Tintern Rd towards Robert Street.
The Statement of Significance for the Tintern Road Conservation Area is found in Part 9 of the DCP as follows: "The Tintern Road Heritage Conservation Area is of local significance … The Area is of aesthetic significance as an area developed from 1891 to the 1940's with substantial houses on large garden sites. Tintern Road, a wide Brush box lined street with grassed verges, demonstrates the early 20th century character of street tree planting. The houses are representative of the Federation Queen Anne, Federation Arts & Crafts, Inter-war California Bungalow, Inter-war Functionalist and Inter-war Old English styles. Federation styles are the dominant built form of housing."
The Key Character Elements of the Tintern Road Conservation Area are defined as; " Subdivision and public domain elements: • Pre-1943 street tree planting of Brush box within carriageway in Tintern Road • Relatively wide carriageway in Tintern Road • Grassed verges in Tintern Road Elements that contribute to the consistency of the streetscape (visible from the public domain): … • Original details such as: • Front verandahs with original detailing • Original roof forms with original cladding of slate or unglazed terracotta tiles and original chimneys • Gable end facing the street with original timber shingled, roughcast stucco or imitation half-timbered finishes (Federation, Inter-war periods) • Face brickwork (Federation, Inter-war periods and 1940s) • Original timber-framed windows and timber panelled doors consistent with the periods and styles of houses ..."
The property at No.39 Tintern Road is identified in the DCP as a Contributory 1 building in the Tintern Road Conservation Area.

The issues

In essence, this appeal is about whether the form and character of the proposed contemporary addition to the rear of No.39 Tintern Road has an adverse effect on the Tintern Road Heritage Conservation Area, and is permissible under the relevant provisions of the DCP.
The Council is of the view that the proposed development offends the following aspects of the DCP, including: 1. Chapter E1, Part 3.2, Objectives 1, 2 and 3; and Controls C4 and C5 relating to Contributory buildings 2. Chapter E1, Part 3.3, Objectives 1, 2, 3, 4 and 5; and Controls C1, C3 and C4 relating to Form, Massing and Scale 3. Chapter E1, Part 3.4, Objectives 1 (a), (b), (c), (d), (e), (f), (g) relating to Infill Development with a Heritage Conservation Area. 4. Chapter E1, Part 4.1, Objectives 1, 2 and 5; and Controls C1, C2 and C3 relating to Roofs, Dormers, Chimneys and Skylights 5. Chapter E1, Part 4.3 relating to Driveways, Garages and Carports 6. Chapter E1, Part 4.4, Objectives 1, 2 and 3 relating to Fences 7. Chapter E1, Part 4.5, Objectives 1, 2, 4 and 5; and Controls C4, C7 and C8 relating to Building Materials, Finishes and Colour 8. Chapter F1, Part 1, Performance Criteria 1, 4, 6, 7 and 8 relating to Dwelling House and Dual Occupancy
To assist the Court on these aspects, expert evidence was provided by:

Mr James Phillips, the Applicant's heritage expert and Mr Robert Moore, the Respondent's heritage expert
Mr Shaun Carter, the applicant's urban design expert, and Mr Brett Newbold, the Respondent's urban design expert

It is generally agreed that the existing dwelling is in good condition, is largely intact, and makes a significant contribution to the Tintern Road Conservation Area. It is also generally agreed that the proposed development displays high quality contemporary design.
There is no dispute between the parties that the proposed development will be visible from Tintern Road. The first floor addition, located behind the existing dwelling, is both higher than the ridgeline of the existing roof and does not follow the hip roof form of the existing dwelling. Furthermore, the lateral extension to the South of the site addressing Clissold Street - comprising the kitchen and bedroom over - will be visible from Tintern Road, albeit somewhat obscured by the mature tree to be retained, referred to as Tree 4.
The principal disagreement lies in whether the proposed development is appropriate in the Tintern Road Conservation Area, given the subject site is located on a corner - presenting the rear and side of the site to public view from Clissold Street.
Mr Moore holds the view that the steep pitch of the new addition, and style of building evident in the proposed development, which he describes as "unnecessarily adversarial", may alter the understanding of the Tintern Road Conservation Area when viewed from Tintern Road. In the joint expert report (Ex 5), Mr Moore describes the proposed development as analogous to a "tall person in the back of the room, wildly gesticulating to gain the attention of those in the front".
Mr Phillips is of the view that the characteristics of the Tintern Road Conservation Area are well met by the proposal that is located to the rear of the site, retains the front and side elevation of the existing dwelling, retains the garden setting of the front and side elevation of the dwelling, is recessive when viewed from Tintern Road, and is high quality in terms of its design and material choices.
The subject site is unique in the Tintern Road Conservation Area for being the only site with a primary frontage to Tintern Road, and a secondary frontage to Clissold Street. The Respondent submits that this unique characteristic of the site means it acts as a 'gateway' to the Tintern Road Conservation Area to the north, and consequently, the addition visible to Clissold Street should be considered in any assessment of the impact of the proposed development on the Tintern Road Conservation Area.
The experts generally agree that Clissold Street is of a fundamentally different character to Tintern Road. The street is clearly more narrow. There are no street trees, and no grassed verges. Building setbacks are reduced. The two storey residential apartment development on the corner of Clissold Street and Victoria Street, new two-storey garage development at No.1 Victoria Square, and high face brick boundary wall to No.1 Victoria Square contribute to the general impression of Clissold Street, between Victoria Street and Tintern Road, as a walled thoroughfare.
The Applicant submits that the proposed development, when viewed from Clissold Street, is consistent with this different character and that, consequently, some latitude is warranted in the application of the provisions of the DCP. In his evidence, Mr Carter explained that the zero setback of the face brick boundary wall to Clissold Street was designed to reflect what he called the "more urban form" of Clissold Street, and that he decided to discontinue the boundary wall at the location of Tree 4 which, in his mind, marks the transition to the more "suburban form" of Tintern Road.
In contrast, the Respondent's clear preference is for the proposed development to observe the same setback to Clissold Street as the existing dwelling so as to permit a view from Clissold Street to the rear of the existing dwelling. The Respondent's urban design expert provided the Court with a sketch to show how this may be achieved (Ex 8).
In closing submissions, the Respondent proposed that one option for the Court was to approve the proposed development using the 'amber light' approach, and to rely on Exhibit 8 as a reference for further work by the Applicant. I decline to do so. It is not the role of the Court to consider whether an alternative proposal should be pursued in preference to the application which is the subject of the appeal. Instead, the Court is asked to consider the effect of the proposed development on the heritage significance of the area concerned.
Mr Moore is of the view that the unique character and heritage significance of the Tintern Road Conservation Area, described at [10] and [11] are three-dimensional in their nature, and so relate to the whole of the houses within the Tintern Road Conservation Area. Mr Phillips gave evidence that it is common for Contributory items within a Heritage Conservation Area to be valued for the 'intactness' of the front portion of the dwelling, and that it is generally accepted that the rear is an appropriate location for new works such as that in the proposed development.
Mr Newbold describes the prevailing streetscape character within the Tintern Road Conservation Area as being defined by the green streetscape character derived primarily from street trees (Ex 5). This is consistent with the Statement of Significance found at [10] that places emphasis on "a wide Brush box lined street with grassed verges [which] demonstrates the early 20th century character of street tree planting".
Furthermore, the Key Character Elements found at [11] support the focus of the Tintern Road Conservation Area as relating primarily to the 'avenue experience' of Tintern Road, when walking, standing or driving along the street and suggesting that the chief concern of the Tintern Road Conservation Area is in the preservation of the character fronting and addressing Tintern Road itself.

Considering the Inner West Comprehensive DCP

The Council submits that the proposed development is inconsistent with the objectives and controls of the DCP found in [14].
Considering the evidence and submissions made by the parties, I am satisfied that the proposed development is consistent with the objectives and controls of the following provisions of the DCP;

Chapter E1, Part 3.2, Objectives 1, 2 and 3; and Controls C4 and C5 relating to Contributory buildings
Chapter E1, Part 3.3, Objectives 1, 2, 3, 4 and 5; and Control C3 relating to Form, Massing and Scale
Chapter E1, Part 4.1, Objectives 1, 2 and 5; and Controls C1, C2 and C3 relating to Roofs, Dormers, Chimneys and Skylights
Chapter E1, Part 4.4, Objectives 1, 2 and 3 relating to Fences
Chapter E1, Part 4.5, Objectives 1, 2, 4 and 5; and Controls relating to Building Materials, Finishes and Colour

In my view, the provisions of Chapter E1, Part 3.4, Objectives 1(a), (b), (c), (d), (e), (f), (g) relating to Infill Development with a Heritage Conservation Area apply to the rear garage of the proposed development only. The explanatory note contained in Part 3.4 states: "Infill development is defined as: includes new buildings on vacant sites and new buildings on existing occupied sites where the new building is separate from the existing building and forms part of the identified streetscape. An infill development might be a dual occupancy, rear garage, or rear commercial building addition in historic town centre."
I am satisfied that the amended plans, which set back the garage by 1m from Clissold Street, can be said to satisfy the provisions of Part 3.4.
I agree and accept the Applicant's submission that the provisions of Chapter F1, Part 1 relating to Dwelling House and Dual Occupancy only apply where they are specifically stated to relate to the Heritage Conservation Area. Guidelines on the application of this Part of the DCP state that: "This guideline applies to Heritage Items and Heritage Conservation areas only where specifically stated in this part. Primary controls for buildings which are Heritage Items or Heritage Conservation areas are in Ashfield LEP 2013 and Chapter E - Heritage Conservation part of the DCP. "
The provisions contained in Chapter F, Part 1 that are specifically stated to be relevant to the proposed development are found at Performance Criteria 8, Design Solution DS8.2 and 8.3. The planning experts are agreed that the proposed development complies with these provisions (Ex 3).
The outstanding issues then, in my view, relate to what provisions guide the setback of the proposed development to Clissold Street.

Setback to Clissold Street

For the reasons already stated, the subject site is unique in the Tintern Road Conservation Area for its frontage to Clissold Street which is of a fundamentally different character.
The proposed development does not contravene any numerical controls in relation to the Clissold Street setback. However those controls that may be regarded as most relevant to side setbacks are contained in Chapter E1, Part 3.3, Form, Massing and Scale and are in the following terms: "Controls C1 Alterations and additions should reflect the bulk, mass, scale, orientation and setbacks of surrounding heritage and contributory items as well as the immediate property. … C4 Alterations and additions should adopt the pattern of side setbacks of heritage and contributory items in the vicinity of the site."
The Respondent also relies on Chapter F, Performance Criteria 4, Design Solution 4.3, 4.4 and 4.5 of the DCP for guidance on side setbacks (Ex 3). However for the reasons stated at [38], I accept the Applicant's submission that, in the absence of specific reference to the Heritage Conservation Area, these provisions do not apply.
The proposed development adopts the side setback of the existing dwelling to the northern boundary adjoining No.37 Tintern Road.
While the new addition clearly does not adopt the side setback of the contributory item to the south, the Applicant submits that the zero setback to Clissold Street adopts the pattern of setback in the vicinity by reference to the high brick wall opposite at No.1 Victoria Square, and further argues that the private open space is overlooked by passing buses; causing privacy and noise impacts on the site.
The height of the boundary wall is 2300mm between the garage and the kitchen. The boundary wall is then raised to a height of 3320mm for a distance of 7440mm at the kitchen.
In considering the objectives and the controls of the DCP, s 4.15(3A)(a) of the EPA Act prevents more onerous standards being imposed where the standards are met and s 4.15(3A)(b) of the EPA Act requires flexibility where the standards are not met. Specifically, s 4.15(3A) provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.

The Applicant relies on Good Design

In his evidence, the architect Mr Carter asserts that the proposed development is an example of good design, and by that virtue, is consistent with s 1.3(g) of the EPA Act, the objectives contained in Better Placed, published by the NSW Government Architect, and in Chapter A, Part 2 of the DCP.
On 1 March 2018, amendments to the EPA Act were given effect, including revision to the objects of the Act. Section 1.3 of the Act now includes: … (g) to promote good design and amenity of the built environment, ...
The Department of Planning & Environment advises on its website ("Part 1 - New objects of the Act") that; "Design is already a relevant consideration that may be considered by decision-makers. However, having a design object elevates the importance of design as part of the planning system as a whole and will ensure that design is considered and balanced with the other objects of the Act. … Better Placed, the Integrated Design Policy for NSW that was released in late 2017, provides a set of principles and guidance to support productivity, environmental management and liveability through good design in NSW."
As stated at [16], there is general agreement that the proposed development is an example of high quality contemporary design. However, given the relatively recent publication of Better Placed by the Minister for Planning and the NSW Government Architect, I now consider how this document may apply in the context of the Court's consideration of the proposed development.

Better Placed

Better Placed was published in July 2017 by the Minister for Planning, Anthony Roberts. The Minister's Statement contained in the document describes its purpose as follows: "Better Placed has been developed by the Government Architect to deliver the strategic approach needed to ensure that as our cities and towns grow bigger they get even better … It has been created to assist everyone involved in design projects or the development assessment process and advocates that we all have a role in ensuring our cities and towns are better places."
Section 1.3 of Better Placed tells us that: "Better Placed is positioned among a range of national, state, city, and local government policies that reference design. … At a state level, while a range of State environmental planning policies (SEPPs), local environmental plans (LEPs), development control plans (DCPs), and typology-specific design guides provide policy and advice on good design, there is currently no overarching policy outlining the NSW Government's position on design."
Contained within the document are seven objectives that are intended to define key considerations in the design of the built environment, including;

Better fit: contextual; local and of its place
Better performance; sustainable, adaptable and durable
Better for community; inclusive, connected and diverse
Better for people; safe, comfortable and liveable
Better working; functional, efficient and fit for purpose
Better value; creating and adding value
Better look and feel; engaging, inviting and attractive

Given the aspirational nature of the document, it may be that the value of Better Placed, and its associated design guides, manuals and case studies, lies in its potential to be a resource for those in the business of procuring design services, or planning to undertake development. It is also clearly intended by its publisher, the Department of Planning and Environment, to be an adjunct document that provides principles and guidance for parties delivering on object (g) of the EPA Act including, presumably, to consent authorities when exercising their function as a decision maker in relation to development applications, pursuant to s 4.15 of the EPA Act.
Section 4.15(1) of the EPA Act sets out the matters that a consent authority is to take into consideration when evaluating a development application, including: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), … that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. The matters contained in s 4.15 may be thought of as relevant controls, or constraints, upon development on the land to which a development application relates.
It is not a new concept to suggest that design operates best within clearly stated controls or constraints. The celebrated American designer, Charles Eames is quoted as saying that "design depends largely on constraints". When interviewed on the subject of 'What is design?' at the Musée des Arts Décoratifs, Palais de Louvre in 1972, Eames offered this insight in to the designer's task when faced with constraints: "Here is one of the few effective keys to the design problem - the ability of the designer to recognize as many of the constraints as possible - his willingness and enthusiasm for working within these constraints. Constraints of price, of size, of strength, of balance, of surface, of time and so forth."
What follows from Eames' observation, is that 'good' design might be thought of as the generating of clever, and perhaps inventive, responses to constraints by the designer. In architectural design, constraints present themselves in many forms; including, and often starting with, a client's stated brief and budget. In turn, the designer must also summon a willingness and enthusiasm to work within the constraints contained in environmental planning instruments, and development standards that apply to a particular site and which may seek to control the maximum building height, or the maximum floor space permitted, or the minimum area required for open space and landscaping.
Good design is not exempt from being assessed for its compliance with the objectives and requirements of any relevant local environmental plan and development control plan, as found at [45] Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712. Instead, it does seem reasonable to expect that good designers should find the opportunities that lie latent within planning controls, which less-good designers may fail to find when faced with the same constraints.

Findings

In preference to viewing the site as being at the confluence of three Heritage Conservation Areas, as suggested by Mr Moore - thereby conferring on the site a greater status - I prefer Mr Phillips' characterisation of Clissold Street as having none of the characteristics of the streetscapes that make up the three Conservation areas that front on to this section of Clissold Street. This is given further weight by reference to the Heritage map contained in the LEP which shows that, in both the Victoria Square and Tintern Road Conservation Areas, the street or roadway is included in the area defined in the DCP. By contrast, Clissold Street is shown entirely excluded from shading that would indicate a role in any Heritage Conservation Area.
I agree and accept the Applicant's submission that Clissold Street is of a fundamentally different character to Tintern Road, and that some latitude is warranted in the application of the controls within the DCP as they relate to the particular circumstances of the side setback within a street that is widely varied. I accept that the Applicant's architect has taken steps to address the unique location of the subject site at the intersection of these differing conditions by defining the Clissold Street frontage to the west of Tree 4 as 'urban' - and so reflect the face brick boundary wall of No.1 Victoria Square - and the conditions to the east of Tree 4 as 'suburban' - and, as a result, restores the existing dwelling in its garden setting.
From the amended plans, the visible form of the new addition, when viewed from Tintern Road, is setback around 23m from the front boundary fence. That which is seen, is in a matching slate tile material, in the form of a mansard roof that pitches steeply to Clissold Street and to a height that approximates the height of the existing boundary wall to No.1 Victoria Street, and which is obscured by the retained Tree 4.
I do not accept the Respondent's submission that the new addition, to the extent that it will be visible from Tintern Road, will adversely impact on the Tintern Road Conservation Area. Significant emphasis of the Tintern Road Conservation Area is placed on streetscape and roof forms. The lateral extension to Clissold Street will largely be read as a steeply pitched, slate tiled roof form. Given the form of the addition and the choice of sympathetic materials, I do not accept that the addition can be said to be 'wildly gesticulating' as viewed in the context of the Tintern Road Conservation Area, but as a form that is deliberate and respectful of the form, scale and materials common to the area.
Evident care has been taken by the architect to select a limited palette of materials that are consistent with those found in the Tintern Road Conservation Area; including roughcast stucco, slate tile and dry-pressed face brick - materials that are described as contributory to the Key Character Elements in the DCP itself.
I am satisfied that works proposed with the application will preserve and enhance the address of the site to Tintern Road through the restoration and improvements to the existing dwelling, fencing and landscape setting, and which are likely to make a positive contribution to the Tintern Road Heritage Conservation Area.
I am satisfied, on the basis of all evidence before me that the proposed development will not adversely impact on the significance of the Tintern Road Conservation Area.

Orders

The orders of the Court are: 1. Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit A and Exhibit B; 2. The appeal is upheld; 3. Development consent is granted for Development Application DA10.2017.257.1 for alterations and additions to the rear of the existing dwelling, including demolition of the existing car port, kitchen, dining, laundry and deck areas and construction of a new 2 storey addition, garage, landscaped garden, pool and rear deck at No.39 Tintern Road, Ashfield, subject to the conditions annexed hereto and marked "A"; 4. The exhibits are returned, except for Exhibits A, B and 7.

T Horton Commissioner of the Court Annexure A (320 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2019

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)

Cited By (2)