Land and Environment Court New South Wales Medium Neutral Citation: Frith v Ku-ring-gai Council [2020] NSWLEC 1588 Hearing dates: 18 November 2020 Date of orders: 26 November 2020 Decision date: 26 November 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is dismissed. (2) Consent to modify development consent DA0433/18 seeking to enclose the timber inlays for the approved front fence and widen the existing sandstone wall on the land being Lot C in DP 414544 and being the land known as No 28A Water Street, Wahroonga, is refused. Catchwords: DEVELOPMENT APPLICATION – Wahroonga heritage conservation area – modification application – whether minimal environmental impacts – front fence and gates Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Texts Cited: Ku-ring-gai Development Control Plan Category: Principal judgment Parties: Adam Frith (First Applicant) Lucy Frith (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: D Baird (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Baird Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2019/247525 Publication restriction: No Judgment 1. COMMISSIONER: Mr Adam Frith and Ms Lucy Frith (the Applicants) are the owners of the property at 28A Water Street, Wahroonga (the site). The Applicants wish to modify development consent DA0433/18 granted by Ku-ring-gai Council (the Respondent), and now bring an appeal under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) in respect of the refusal by the Respondent for changes to the approved front fence and existing sandstone wall (the modification application). 2. In particular, the modification application seeks to: 1. Enclose the approved vehicular gates, pedestrian gate and fence by deleting the requirement in Condition 8 for 30mm gaps between the 1.6m high vertical slats. 2. Delete the requirement in Condition 8 for the timber inlay at the top of the vehicular gates to be painted black. 3. Widen the driveway opening in the existing sandstone wall from 3.45m to 4.3m by demolishing parts of the sandstone wall. 1. The background facts and contentions as set out by the Respondent are contained in the Statement of Facts and Contentions marked Exhibit 1. 2. The conditions sought to be modified by the appeal are in the following terms: 1. Condition 7 is in the following terms: "7. Existing front low sandstone wall The existing front low sandstone wall on either side of the driveway is to be retained. Reason: To protect the historic and aesthetic significance of the heritage conservation area." 1. Condition 8 is in the following terms: "8. 1.8m high fence and gates The proposed vehicular gates, pedestrian gate and fence are to be modified to remove the solid elements and replace them with transparent elements, as details: A 1.6m high timber framed section with open slats (70x22mm) with 30mm gaps between and painted black; 1 200mm open timber framed inlay above, painted black; and The gates are to be hinged opening into the property. Reason: To protect the historic and aesthetic significance of the heritage conservation area." The site and its context 1. The site is a battle-axe allotment. As such, the frontage of the site is limited to a width of 9m, according to the survey in the Class 1 application (Exhibit C). Two low, semi-circular sandstone walls are visible on the northern side of Water Street, leading to a gravel driveway, with landscape planting either side. 2. At the end of the driveway, a dwelling is partially visible, including a front door and bay window. Parties agree the dwelling is located at a distance of 40m from the lot frontage. 3. The site is located within the Wahroonga Heritage Conservation Area (Wahroonga HCA), identified in Schedule 5 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP). 4. The Wahroonga HCA is significant for its distinctive residential streetscapes which evidence subdivision patterns ranging from the 1890's into the late grid lot street and lot pattern of subdivisions. 5. The streets within the area consist of formal avenues of trees, contributing to a high quality and distinctive residential landscape. The onsite view 1. The Court granted the parties leave to commence the proceedings with an onsite view attended by the legal representatives and heritage experts. In their company, I observed the low sandstone walls, and immediate surrounds. 2. Mr Baird, solicitor for the Applicant, identified a line formed in the gravel which was agreed to mark the location of the proposed driveway gates, and assisted in representing the height of the solid portion of the gates with the aid of a tape measure. 3. The extent of dwelling visible over the height of the tape was agreed, both at a location on the roadway, and from the more elevated position on the footpath to the southern side of Water Street. In particular, I noted that from my standing position on the footpath, the height of the solid portion of the proposed driveway gates was approximately the same level as the centrally located door knob on the front door of the dwelling on the subject site. 4. After some time at the front of the subject site, I was taken on a walking tour in a westerly direction, and particular properties were identified for their presentation to the street. 5. Relevantly to the expert evidence later presented, I was asked to take particular note of the form and style of the fence and gates at the following properties: * No. 35 Water Street, otherwise known as 'Rippon Grange' * No. 23 Water Street * No. 10 Water Street (later identified correctly as a rear entrance to No 47 Burns Road). The issues are considered 1. I propose to address the issues in the order of the conditions the Applicants seek to modify, being firstly the proposal to modify the sandstone walls and secondly, the timber fence and gates. 2. After setting out the parties' positions in respect of these elements of the application, I will consider the proposed modification in accordance with s 4.55 (1A) of the EPA Act. However, one test I am required by s 4.55(1A) to apply is whether the modification is of minimal environmental impact. As the site is within the Wahroonga HCA, I am of the view that the environment upon which the impacts are to be minimal must encompass the environmental heritage of the Wahroonga HCA. 3. Accordingly, I will also consider the effect of the proposed modification on the Wahroonga HCA in accordance with cl 5.10(4) of the KLEP. The sandstone walls 1. According to Mr Baird, the proposed modification seeks to improve vehicular and pedestrian safety by increasing the width of clearance between the two low curved sandstone walls either side of the entry, and improve privacy for the Applicants who wish to enjoy the amenity of their property without the uninvited eye of third parties on the street. 2. The Applicants also submit that the sandstone walls are not identified as items of heritage significance, and only minor modifications are proposed which, if the appeal is upheld, would be undertaken by skilled stonemasons who are capable of resolving the geometry between the curved walls and the 'square' forms of what the experts describe as 'buttresses' and ensuring the structural integrity of the walls are maintained. 3. In support of the proposal, the Applicants rely upon advice from Mr Craig McLaren in a letter dated 30 April 2019 (April letter) (Exhibit B), and a letter contained in the Class 1 Application (Exhibit C, tab 4) dated 10 May 2019 (May letter). 4. In essence, Mr McLaren's view is that modification of the sandstone walls to increase the opening from 3.5m to 4.3m in width will "significantly increase the ease at which vehicles can enter the site" (Exhibit B) in support of which, swept path diagrams showing the arc taken are enclosed at Annexure A. 5. The Respondent prefers Mr McLaren's advice contained on p1 of the May letter, that confirms a B99 vehicle body, with a 300mm clearance as required by cl B3.2 of AS2890.1:2004, can successfully negotiate the existing width between the sandstone walls, without modification. Mr McLaren states: "The existing driveway width not only satisfies the 600mm requirement but also provides an additional 147mm of total clearance (or 63mm to 84mm each side) to the swept path envelope beyond the required 300mm clearance on either side of a vehicle when entering or leaving the driveway…" 1. That said, the May letter also supports the greater width of 4.3m which Mr McLaren considers will "result in superior manoeuvring ability". 2. The heritage experts agree that the site is a contributory property in the Wahroonga HCA, and also agree that the sandstone wall has high heritage significance as it contributes to the heritage values of the heritage conservation area and the locality. 3. It is Ms Holtham's evidence that the sandstone wall was associated with a former grand house that was constructed in 1869, has high visual integrity and should be retained in its entirety. 4. However, according to Mr Romey, the wall shows evidence of extensive repairs that may have been required as a result of vehicle damage in the past, which is supported by letters in Exhibit A from residents at No. 28 and 30 Water Street suggesting an accident occurred 8-10 years ago. The timber fence and gate 1. In respect of the design of the timber fence and gates, the Applicant submits that similar solid panel designs are evident in gates at No. 23 Water Street, and at No. 47 Burns Rd, and a solid, lapped and capped fence opposite the subject site, enclosing the property at No. 35 Water Street extends for more than 100m and at a height greater than the solid panel proposed on the subject site. 2. In both written and oral submissions, the Applicant contends that the Respondent has misdirected itself in applying Section 19F.4 of the Ku-ring-gai Development Control Plan (KDCP) in assessing the application now before the Court. 3. Ms Holtham is of the view that while the provision is not explicitly relevant to the proposed gates, it is an appropriate provision to apply and the objectives remain a relevant consideration, which seeks fences that contribute, and do not detract, from the character of the Wahroonga HCA. 4. In his oral evidence, Mr Romey acknowledges that the provision is poorly worded, but also considers that as the works are properly considered gates, a provision in respect of front fences is not applicable. 5. Section 19F.4 relevantly provides: "Objectives To encourage front fences on adjacent sites that contribute to the setting of the Heritage Item and the streetscape character of the HCA. Controls Fences on adjoining sites 1 New front fences on adjacent sites are to be no higher than the front fences of the adjoining Heritage Item or HCA. Open and transparent front fences such as timber or metal picket are preferred. …" 1. Mr Baird notes the reference to front fences as open and transparent is worded as a preference only and does not direct or instruct. 2. While I acknowledge the agreement of the experts that the provisions of Section 19F.4 do not apply in this case, for the reason stated, I cannot accept that the provision should be set aside, or its role diminished. 3. The control clearly has three parts. Firstly, that the height of a front fence is referrable to what adjoins it, secondly, that it should be open and transparent, and thirdly it be constructed out of timber or metal pickets. 4. While I agree with Mr Romey that the provision is poorly worded, in my view, only the words "or HCA" are jarring and are easily resolved by reference back to the objective which, again in my view, confirms the purpose of the control is to achieve a similarity in height between fences that adjoin – whether they be heritage items or be otherwise located in a heritage conservation area. 5. There is no lack of clarity or cloud over the openness and transparency of front fences, or the materials preferred. 6. There is also no doubt that the driveway gates are shown within a fence structure. In fact, the Application to modify a development consent received by Council on 15 May 2018 is described as "New front fence with landscaping" (Exhibit C, tab 1). 7. What, if not a fence, is the continuous structure spanning the battle-axe handle and within which the vehicular and pedestrian gates are to open and close? 8. The driveway gates are not a standalone feature, but are integral in height and material to the fence that runs the full 9m width of the 'battle-axe handle', and provides for a pedestrian gate as well. Together, this assembly is plainly a fence, in which there are two hinged panels that open to permit entry of a vehicle, and a single panel that opens to a person seeking to enter or exit the property. 9. I accept the Respondent's submission that whether or not the subject fence is constructed on the boundary, or setback 7m, is immaterial if the fence can be properly described as a front fence. To hold otherwise would give rise to the absurd circumstance where property owners seeking to evade conformity with the provision could do so by setting back a front fence from a boundary. 10. The Applicants submit that there are examples of solid timber fences and gates in Water Street that also contribute, in a different way than is intended by the control, to the character of the street. 11. I accept the Applicants' submission that the fence enclosing the property known as 'Rippon Grange' at No. 35 Water Street appears to be a defiant exemplar of the provision at Section 19F.4 of the KDCP. I note Ms Holtham's evidence is that the fence at No. 35 Water Street may be properly considered a 'side' and not a 'front fence'. Whether or not this highly nuanced reading of the provision is correct, as the Court is not aware of the particular circumstances of the history or consent applicable to 'Rippon Grange', I do not place much weight on the character of its fence. 12. I also accept that the gates at No. 23 Water Street and No. 47 Burns Road appear anything but open and transparent, but for similar reasons as stated above, unaware as the Court is of the circumstances of those consents, if granted, I do not regard them as relevant precedents. Is the proposed modification minimal environmental impact? 1. In considering this appeal, the Court exercises the functions of the Council in determining the modification application pursuant to s 4.55 of the EPA Act. 2. Subsection 4.55(1A) is in the following relevant terms: … (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. … 1. The exercise of the power in subs 4.55(1A) of the EPA Act requires the Court to first be satisfied of a number of pre-conditions. The first is at s 4.55(1A)(a), that "the proposed modification is of minimal environmental impact", and the second is s 4.55(1A)(b), that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted". 2. Upon reaching the satisfaction of these two pre-conditions, subs (3) provides that: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. 2. The modification application seeks the partial removal of the sandstone walls either side of the driveway entry, and the removal of 30mm gaps between timber pickets as appears in Condition 8. 3. The sandstone walls are agreed by the experts to contribute to the heritage values of the Wahroonga HCA. 4. The statement of significance for the Wahroonga HCA is in the following terms: "Wahroonga Heritage Conservation Area is of heritage significance for its distinctive residential streetscapes which evidence the transformation of early subdivisions of the 1890s into the later rectilinear grid lot street and lot pattern of later subdivisions including the Wahroonga Heights Estate. The area contains a significant collection of grand residences from the Federation and Inter-war periods, built following the opening of the North Shore railway line in 1890, many of these are the residences of prominent families of this period, and often designed by prominent architects, for example the 1894 Ewan House (formerly Innisfail) designed by architect Herbert Wardell for John Thomas Toohey, and eleven houses designed by the architect Howard Joseland. It also contains mid to late twentieth century development that contributes positively to the significance of the conservation area. The western end of Burns Road and western side of Coonanbarra Road are representative streetscapes of intact more modest Federation period houses. The through-block pathways and formal avenues of street trees within the area (in Burns Road, Water Street and Coonanbarra Road) along with the formal landscaping of Wahroonga Park, and its distinctive John Sulman-designed shops in Coonanbarra Road facing the Park, are a tribute to the work of the Wahroonga Progress Association in the early 20th century (which included Sulman as a member), and have resulted in a high-quality and distinctive residential landscape." 1. The argument for the partial removal of the sandstone walls is, largely, about improving vehicular and pedestrian safety. However, I do not consider the reports of a collision involving a vehicle '8-10 years ago' to be evidence of any safety issue lying latent in the form of the sandstone walls. 2. Mr McLaren's assessment is that the risk of collision is particular to unfamiliar drivers, and that partial removal of the sandstone walls will significantly increase the ease with which vehicles can enter the driveway. 3. The task for the Court is to balance the Applicants' perceived need for 'ease' with the impact on the character and heritage values of the Wahroonga HCA by the removal of historic fabric. 4. My understanding of Mr McLaren's evidence is that the width of the clearance between the sandstone walls is sufficient for a turning vehicle. The driveway is to a private property and so drivers of vehicles are likely to be familiar with the particular risks and take appropriate care. 5. The sandstone walls are of a low height and curve in a manner that permits a sightline both over the walls by an exiting vehicle, and laterally to the footpath in a broadly 45 degree angle. 6. As there appears to be no impediment to a sightline to or from a pedestrian on the footpath, in my view there are no grounds made out in respect of vehicular or pedestrian safety. 7. Next, the Applicants' seek the deletion of the gaps between timber pickets as required by Condition 8. The gaps, as it was put to me by Ms Holtham, permit a degree of transparency in the gates that would assist to preserve the visual relief afforded by the long view down a driveway with landscape plantings. 8. Once again, the Applicants' desire for privacy is held in tension with what Ms Holtham considers to be an aspect or feature of the environment on Water Street. 9. If I compare the environmental impacts of the development as originally approved and the development as modified, I consider the environmental impacts of the modification application to be more than minimal. 10. In arriving at this conclusion, I accept that the modification sought is, in effect, the deletion of gaps that are just 30mm in width. However, the removal of the gaps in the gates and fence would have the effect of presenting a continuous solid plane to Water Street that would necessarily be more visible from Water Street by the partial removal of the sandstone walls. 11. For the reasons set out below and based on the evidence before the Court, I am not satisfied that the proposed modification is of minimal environmental impact. Such satisfaction is a precondition for the exercise of the power to modify the consent pursuant to s 4.55(1A) of the EPA Act. 12. Accordingly, that power cannot be exercised and the appeal must be dismissed. 13. However, in the event that I am incorrect in construing the environmental heritage of the Wahroonga HCA in the assessment required by s 4.55(1A) of the EPA Act, I also record here my conclusion that, in accordance with cl 5.10(4) of the KLEP, I have determined that the proposed modification would have a detrimental effect on the Wahroonga HCA because, firstly, the proposed modification is not in accordance with the Section 19F.4 of the KDCP, and secondly, for the reasons set out at [53]-[62]. 14. In arriving at my determination, I observe that the consent granted by the Council is for a fence and gates in a form virtually identical to the fence and gates proposed in the appeal. The difference in the fence and gates is in the degree of transparency. The Applicants' seek privacy for their property. 15. While it was not the subject of submissions, I note that the layout and arrangement of the site is such that generous grounds are evident to the rear of the site, away from the public domain of Water Street and where it is reasonable to expect that much privacy is afforded. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. Consent to modify development consent DA0433/18 seeking to enclose the timber inlays for the approved front fence and widen the existing sandstone wall on the land being Lot C in DP 414544 and being the land known as No 28A Water Street, Wahroonga, is refused. …………………… T Horton 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: 26 November 2020