Land and Environment Court New South Wales Medium Neutral Citation: Jays v North Sydney Council [2020] NSWLEC 1595 Hearing dates: 9 November 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The Court orders: (1) The appeal is dismissed. (2) Development Application No. 225/19 for alterations and additions to an existing attached dwelling at 27 Edward Street, North Sydney, is refused. (3) The exhibits, other than exhibits 1, A, B and D, are returned. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – impact on the heritage significance of the heritage conservation area Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 Texts Cited: North Sydney Development Control Plan 2013 Category: Principal judgment Parties: Linda Jays (Applicant) North Sydney Council (Respondent) Representation: Counsel: H Irish (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Hall & Wilcox Lawyers (Respondent) File Number(s): 2019/354290 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 225/19 for alterations and additions to an existing attached dwelling (the proposal) at 27 Edward Street, North Sydney (the site) by North Sydney Council (the Council). 2. The appeal was subject to conciliation on 24 July 2020, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act. 3. Leave was granted by the Court on 8 September 2020 for the applicant to amend the application to rely on an amended proposal, subject to an order that the applicant pay the Council's costs thrown away as a result of the amendment, pursuant to s 8.15(3) of the EPA Act. Leave was unopposed and granted at the commencement of the hearing for the applicant to amend the application to rely on a further amended proposal (Ex D). 4. The hearing was conducted via MS Teams. At the commencement of the hearing, the parties requested that I view the site and I did so, in the company of the representatives and the heritage experts, during the middle of the day of the hearing and prior to closing submissions. Issues 1. The Council's contentions can be summarised as: * The proposed rear additions will fail to conserve the heritage significance of the Edward Street Heritage Conservation Area; * The location of the dormer is not appropriate to the building and roof form to which it is attached. 1. The Council's contention that a proposed first floor glazed door on the eastern elevation would result in unreasonable privacy impacts on the adjoining property at 25 Edward Street was addressed to the Council's satisfaction by the planning experts' agreement to delete the door by a condition of consent. 2. The applicant raised an issue regarding a deferred commencement condition in the conditions of consent (Ex 6). The applicant submitted that the imposition of the deferred commencement condition on a consent amounted to a refusal of the application, because the changes required by the deferred commencement condition substantially modified the proposal. The Council submitted that if I was minded to accept the Council's position in relation to any of the individual modifications sought by the deferred commencement condition, I should make findings and directions for amended architectural drawings. The deferred commencement condition, in summary, sought the following modifications to the proposal: * Deletion of the front dormer in the Edward Street elevation; * Modification of the rear dormer to be of a traditional design with reduced areas of glazing to complement the style and detailing of the terrace row; including to be centrally located within the roof plane, set in from the party walls and set below the ridge; * Retention of the roof over the rear secondary wing of the terrace; * Redesign of the roof over the rear tertiary wing to be a sloping skillion roof form; * Deletion of three skylights in the roof of the rear wing. 1. The imposition of the deferred commencement condition would result in an uncertain outcome because they send the applicant back to the drawing board. The site and its context 1. The site is on the eastern side of Edward Street, to the south of the corner of Edward Street and Oak Street. The site contains an existing single storey dwelling which is one of the central dwellings within a terrace row of four at 23-29 Edward Street. There is a similar terrace row of four to the south of the site, at 15-21 Edward Street. Both terrace rows are late Victorian workers' cottages. 2. The site has a frontage to Edward Street of 4.865m and an area of 161.1sqm. 3. The commercial centre of North Sydney forms a backdrop to the terrace row when viewed from Edward Street. The site can be seen from Edward Street, Oak Street and the rear laneway. Background and the proposal 1. Development Consent No. 203/15 for alterations and additions, including a new first floor, to the existing single storey terrace house at 15 Edward Street, North Sydney, was approved by the Council in 2016 (Ex 5, tab 2). 2. The proposal includes the following: * Retention of the front two bedrooms, excluding ceilings and roof structure, and demolition of most of the fabric in the rear wing of the dwelling; * Construction of a new first floor master bedroom suite, floor structure, roof and new dormer fronting Edward Street; * Construction of a new rear wing, including a stair to the first floor requiring a section of the roof to be raised; a new bathroom; and a new kitchen, dining and living area with a reduced southern side setback (the reduced southern side setback is not dimensioned on the architectural plans); * Retention of all the chimneys externally. Planning framework 1. The site is zoned R2 Low Density Residential pursuant to North Sydney Local Environmental Plan 2013 (LEP 2013). The objectives of the R2 zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. 1. The site is within the Edward Street Heritage Conservation Area (HCA) (Sch 5, Pt 2 and Heritage Map Sheet HER_002A of LEP 2013). The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the HCA, pursuant to cl 5.10(4) of LEP 2013. 2. North Sydney Development Control Plan 2013 (DCP 2013) applies to the proposal at Part A section 1.2. The provisions of Part B section 1 for residential development are relevant to the assessment of the proposal. 3. Part B section 13 of DCP 2013 includes objectives and provisions for heritage and conservation and applies to the proposal at section 13.1.3(c). The site is identified as contributory to the HCA (Appendix 1 p 13). 23, 25 and 29 are each identified as contributory to the HCA, and 15, 17, 19 and 21 are each identified as contributory to the HCA. A description of contributory items at section 13.6 is in the following terms: "Contributory items are part of the collective significance of the particular conservation area in which they are located. They are important for what they offer to the streetscape or character of the heritage conservation area. As a result, the focus for contributory items is how the building appears in the public domain, and especially from the street. Council does not support the demolition of contributory items." 1. Objective O1 to Part B section 13.6.2 of DCP 2013 is to ensure that new development has a compatible and complimentary building form and scale to that which characterises the conservation area. Objective O2 is to maintain and enhance streetscape character as identified within the Area Character Statements. The relevant provisions to section 13.6.2 are in the following terms: "P1 Development should reflect the bulk, mass, scale, orientation, curtilage and setbacks of surrounding heritage and contributory items. P2 Development should recognise and complement the predominant architectural scale and form of the area. … P9 New work may adopt a contemporary character, provided the development is not likely to have a detrimental impact on the characteristic built form of the area, particularly in terms of bulk, scale, height, form or materials." 1. The description of the Edward Street HCA, at Part 3, section 10.12.2 of DCP 2013, is as follows: "Description The Edward Street Conservation Area runs each side of Edward Street with larger areas to the south including the Catholic University site. It is bounded to the east by high rise along the Pacific Highway, the North Sydney School to the north and by the steep slope to the west. Edward Street runs along the top of a ridge and is flat to the east falling steeply to the west along Riley Street. Subdivision is determined by the street layout and topography with rectangular and irregular lot sizes, some developed for attached housing with no rear lanes. The area is characterised by each phases of development and groupings of identical rows of houses. The early phase of development is represented by the Don Bank Group; small scale, attached, single storey weatherboard and brick houses in the Victorian Georgian and Italianate style. These buildings create an intimate 19th century atmosphere and context for the Victorian Filigree style developments at the southern end and the later detached dwellings at the northern end in the Federation Queen Anne and Inter War styles. There is some two storey Victorian and Federation attached dwellings houses and residential flat buildings and later infill developments. The Catholic University occupies the west of the conservation area and contains Rockleigh, modern buildings and car parking. Street verges are 3.5 metres wide to Edward and Berry Street with grass and concrete footpaths and crossovers for parking. Houses to the high side of the street are set on brick and sandstone plinths and the houses to Riley Street are set on elevated sites with high, sandstone retaining walls to the street. There are views from Edward Street to the CBD and to the west to the Harbour. The axial view north along Edward Street looks directly to the stone gateway of the original Lady Hay's Estate. The land steps across Edward Street with a high side to the east with houses and a low side to the west and there are low street trees. Front gardens contribute to the landscaping of the street and there are remnant trees in the former Rockleigh Estate." 1. The characteristic built elements of the Edward Street HCA, at Part C, section 10.12.6 of DCP 2013, include the following: "Form, massing and scale P3 Single storey detached, semi-detached and attached dwellings with projecting bays and verandahs to the street. P4 Skillion rear wings. P5 Reduced height and scale to rear. P6 Dwellings in groups of identical design (detached, semi detached and attached)." 1. Part B section 13.6.4 of DCP 2013, Additional storeys and levels, is in the following terms: "Objectives O1 To ensure that the scale of the streetscape and context of the heritage conservation area are respected. Provisions P1 Additional storeys or upper level additions are not supported in heritage conservation areas. P2 Despite P1, the consent authority may permit an additional storey or upper level addition, but only if the applicant can demonstrate: (a) that the resultant building will exhibit a similar scale to that in the vicinity of the site, and (b) that the design respects the heritage characteristics of the area. (c) that the additional storey does not alter the form or scale of any heritage or contributory items. Note: Modest cottages need to retain a small form and height. P3 Typically, additions should be set back behind the main roof lines and should be located substantially within the existing roof." 1. Objective O1 to Part B section 13.9.1 is to ensure that skylights, solar panels and satellite dishes do not detrimentally impact upon the significance of heritage items and heritage conservation areas. 2. Part B section 13.9.2, Dormer windows, includes the following: "Dormers can be an effective way to make use of existing space within the home. Dormers should not appear "tacked on" and should not dominate or appear as a second storey. Design clues should be taken from the existing building. Objectives O1 To ensure that dormer windows do not detrimentally impact upon the significance of heritage items and heritage conservation areas. Provisions P1 Are to comply with the requirements for dormers in s.1.4.11 to Part B of the DCP. P2 Dormers must not be placed on the street elevation of a building. P3 Despite P2, Council may permit a dormer on the street elevation of a building, but only where it can be adequately demonstrated that: (a) it will not result in any adverse impacts to significance of any heritage item or heritage conservation area; (b) it will not result in any significant impacts on privacy to adjoining properties; (c) it will not detract from the coherence of the streetscape; and (d) surrounding properties have dormers visible from the street. Note: For the purpose of this subsection, surrounding properties are defined as those properties in the immediate vicinity which are visible when standing opposite the subject building." Expert evidence 1. The applicant relied on the expert evidence of Stephen Davies (heritage) and Jennie Askin (planning). The Council relied on the expert evidence of Surbjit Bhatti (heritage) and Luke Donovan (planning). The joint reports of the experts were admitted into evidence as Ex 2 (heritage) and Ex 3 (planning). 2. The planning experts agreed on all matters in their joint report including the imposition of a condition of consent to delete door D04 in order to address the Council's contention regarding visual privacy. The planning experts agreed that the proposed front dormer window is consistent with the provisions for dormers at section 1.4.11 of DCP 2013 and that it will not result in significant impacts of privacy to adjoining properties and will not detract from the coherence of the streetscape, noting that 15 Edward Street has a dormer visible to the street. Submissions 1. The applicant submitted that the terrace row of 23, 25, 27 and 29 are not identified as a group. 2. The applicant submitted that Ms Bhatti wrongly focused on the provisions in DCP 2013 for group heritage items at section 13.5.7 and applied the wrong test. Consideration 1. I do not accept the submission that Ms Bhatti wrongly focused on the provisions for group heritage items and applied the wrong test. The heritage experts agreed that the terrace row at 23-29 Edward Street is a "group of contributory items", and "the group is highly visible from Oak Street and Wheeler Lane" (Ex 2, par 6). The identification of each property as an individual contributory item does not negate the contribution the group makes to the heritage significance of the Edward Street HCA. It is plainly evident that the four attached dwellings form a late Victorian terrace row. 2. I accept and agree with Mr Davies' evidence that the group constitutes a modest, representative example of workers' cottages within the North Sydney area. I disagree with Mr Davies that internal alterations to the dwelling necessarily erodes its contribution to the heritage significance of the HCA. I accept and agree with Ms Bhatti's evidence that the terrace row is externally substantially intact, including street elevations, overall form and distinctive chimney flues, with some unobtrusive rear alterations to individual dwellings. I accept that the terrace row at 23-29 Edward Street is highly visible in the round within the Edward Street HCA, from Edward Street, Oak Street and Wheeler Lane. 3. I accept and prefer Ms Bhatti's evidence that the proposal has a detrimental impact on the overall form, scale and massing of the existing dwelling, and that the proposal will detract from the contribution made by the existing dwelling to the heritage significance of the HCA. The first floor addition to the dwelling requires the demolition of the ceilings, roof structure and front verandah over the principal building form ("Long section" DA10 Rev H, Ex D) and the rear roof form of the principal building form retains no reference to the existing form of the rear roof plane which is intact across the terrace row. I accept and agree with Ms Bhatti's evidence that the proposed rear roof plane over the principal building form, which occupies the full width of the rear elevation from party wall to party wall, interrupts the hierarchy of roof forms within the terrace row and would introduce a discordant element to the roofscapes of the terrace row when viewed from Oak Street. 4. The chimneys are shown as retained on the architectural plans. The chimney breast of the chimney in the middle of the dwelling is shown and noted as retained on the first floor plan (DA06 Rev H, Ex D); and shown as being retained for the full height of the chimney breast on the section ("Long section" DA11 Rev H, Ex D), yet it is shown as demolished on the ground floor plan (DA03 Rev H, Ex D). 5. I agree with the heritage experts' evidence that alterations and additions, including an attic room, to the existing dwelling is a reasonable expectation. The single storey scale of the terrace row can be respected with a skilfully designed first floor addition that is contained within the existing roof and a rear skillion dormer that appears as an addition to the existing roof form by retaining the existing rear roof plane adjacent to the party walls. I do not accept the Council's position, as proposed by the deferred commencement condition, that the rear roof dormer must necessarily be in the form of a traditional Victorian dormer. A skillion roof dormer within the rear roof plane of the principal building form would allow for a first-floor attic room and the retention of the form of the existing roof over the principal building form. The rear wing should be a single level form with roofs that are consistent with the terrace row and retain the chimneys. The alterations and additions proposed in the ground floor plan of the proposal are reasonable and acceptable, but the three dimensional form of the proposal, particularly the roof, must work cooperatively within the group to best preserve amenity and the contribution made by the individual dwellings within the terrace row, when viewed from Oak Street, to the Edward Street HCA. 6. I accept Mr Davies' evidence that the insertion of some skylights in the roof over the rear wing does not detract from the Edward Street HCA, if they do not dominate the roof plane when viewed from the public domain. 7. I accept and prefer Ms Bhatti's evidence that the dormer window in the front elevation would be an intrusive element and would detract from the contribution made by the terrace row, when viewed from Edward Street, to the Edward Street HCA. I do not accept that a dormer window in the front elevation is justified by the street front dormer window of 15 Edward Street or the skylight in the front roof plane of 29 Edward Street. Conclusion 1. The form, massing and scale of the roof forms of the rear addition is not complementary to the scale established by the terrace row and does not maintain and enhance the streetscape character of the Edward Street HCA and is visible from the public domain in Oak Street, contrary to the objectives in Part B, sections 13.6.1 and 13.6.2 of DCP 2013. The proposal does not reflect the bulk, mass and scale of surrounding contributory items and it does not recognise and complement the predominant architectural scale and form of the Edward Street HCA, contrary to P1 and P2 of section 13.6.2 of DCP 2013. The proposal does not maintain the scale, form and integrity of the existing dwelling, contrary to the objective of section 13.10.2 of DCP 2013. I am satisfied that the Council's contention that the proposed rear additions will fail to conserve the heritage significance for the Edward Street HCA is made out, based on the evidence before me. 2. The dormer in the front elevation of the dwelling adversely impacts on the heritage significance of the Edward Street HCA, contrary to P3(a) and (c) and the objective for dormer windows, in Part B, section 13.9.2 of DCP 2013. I am satisfied that the Council's contention that the dormer is not appropriate to the building and roof form is made out based on the evidence before me. 3. I am not satisfied that the proposal has an acceptable effect on the heritage significance of the Edward Street HCA, pursuant to cl 5.10(4) of LEP 2013. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. 225/19 for alterations and additions to an existing attached dwelling at 27 Edward Street, North Sydney, is refused. 3. The exhibits, other than exhibits 1, A, B and D, are returned. ______________________ Susan O'Neill Commissioner of the Court ********** 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: 08 December 2020