Land and Environment Court New South Wales Medium Neutral Citation: Hrsto v Burwood Council [2024] NSWLEC 1483 Hearing dates: 21 May 2024 Date of orders: 13 August 2024 Decision date: 13 August 2024 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) The Appeal is dismissed. (2) Development Application No. 67/2023 for the subdivision of the site into 2 lots, alterations and additions to the existing dwelling house (proposed Lot 1) including the construction of a new swimming pool and basement parking, alterations and additions to the existing laundry/garage building (proposed Lot 2) to create a 2 storey dwelling house, and associated stormwater works, landscaping and tree removal on the land at 2A Appian Way, Burwood, is refused. (3) The Exhibits are returned with the exception of Exhibits 2, B and C. Catchwords: DEVELOPMENT APPLICATION – alterations and additions - subdivision – new dwelling – heritage item – Heritage Conservation Area – streetscape. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 New South Wales Heritage Act 1977 Burwood Local Environmental Plan 2012, cll 2.3, 5.10, Sch 5, Pt 1, 2 Texts Cited: Assessing Heritage Significance, 2023 Burwood Development Control Plan 2023 The Burra Charter 2013 Category: Principal judgment Parties: Andrew Hrsto (Applicant) Burwood Council (Respondent) Representation: Counsel: A Pearman (Applicant) A Seton (Solicitor)(Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/328946 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Andrew Hrsto (Applicant) against the Respondent's deemed refusal of Development Application No. 67/2023 lodged with Burwood Council on 10 August 2023. 2. The development application seeks consent for the subdivision of 2A Appian Way, Burwood, into 2 lots. In addition to the subdivision, the proposal involves alterations and additions to the existing dwelling house (proposed Lot 1), including the construction of a new swimming pool and basement parking. Proposed works on the second lot include substantive alterations and additions to the existing laundry/garage building (proposed Lot 2) to create a 2 storey dwelling house. Additional works to both allotments would include stormwater works, landscaping and tree removal. The site is legally described as Lot 40 in DP 12249. 3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act), which was held on 20 May 2024. An agreement between the parties was not reached and therefore the conciliation conference was terminated and the matter proceeded to hearing on 21 May 2024. I presided over the hearing and this judgment reflects the outcomes of that process. 4. I have concluded, for the reasons set out below, that the merits of the matter warrant the appeal being dismissed, and consequently, that the development application should be determined by way of refusal. The site and locality 1. The site is an irregular shaped allotment with a primary frontage of 70.275 metres to Appian Way, and a secondary street frontage of 73.195m to Liverpool Road (Hume Highway). The western side boundary is 38.725 metres in depth and the southern rear boundary is 56.415 metres in width. The site has a total area of 3,279m². The site falls away from the secondary street frontage to the north-western corner of the site by approximately 4m. 2. Currently a single storey Federation Queen Anne style residential dwelling house (known as "Verona") occupies the site. The site also contains a detached laundry/garage outbuilding located within the western side setback (towards the rear of the site). 3. At the commencement of the hearing process a site view was undertaken, in the presence of the parties, of existing buildings on the subject site. This inspection included commentary from heritage experts, participating in the proceedings, as to the nature and detail of work that might be undertaken in the conservation of the existing dwelling and outbuilding. The site view included an inspection of the context of the subject site including viewing other properties within the Appian Way Heritage Conservation Area (AWHCA). Issues raised in public submissions 1. The development application was notified by the Respondent from 18 September 2023 to 5 October 2023 to surrounding property owners and occupiers. The respondent received 6 submissions objecting to the proposed development. The development application was subsequently re-notified to include more properties within Appian Way from 5 October 2023 to 20 October 2023. The respondent received a further 28 submissions objecting to the proposed development, resulting in a total of 34 submissions. 2. The submissions covered a wide range of issues but a consistent focus was a concern regarding the impact that the development would have on the heritage significance of the AWHCA and the broader streetscape. Concerns included a perception that the subdivision of the land, as proposed in the development application, would fundamentally alter the character of the AWHCA. The submissions also included concerns regarding the landscape outcomes for the site including a range of issues in respect to the removal or retention of existing trees. 3. At the commencement of the hearing, the parties and the Court, heard oral submissions raising similar concerns as to those outlined in written submissions. In addition, an inspection was undertaken at an adjoining premises where issues of scale and privacy were raised. The Assessment Framework The Burwood Local Environmental Plan 2012 1. The site is zoned R2 Low Density Residential under the Burwood Local Environmental Plan (BLEP 2012) and development for the purposes of dwelling houses and subdivision are permissible in the zone. The relevant objectives of the zone, to which regard must be had in determining the development application (cl 2.3(2) BLEP 2012), 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. 1. The subject site, 2A Appian Way, is listed as Heritage Item no. I226, in Sch 5, Pt 1, Heritage Items, of the BLEP 2012. The site is also within the AWHCA which is listed in Sch 5, Pt 2, Heritage Conservation Areas of the BLEP 2012. The BLEP 2012 Heritage Map spatially identifies a group of dwellings which are individual items but listed collectively as item I226. The map also identifies (in red cross hatch) an area which includes the individual items as well as additional properties that form the overall AWHCA. 2. The core issues in this appeal relate to the impact of the proposal on the heritage significance of the heritage item, the group and the AWHCA. As such, clause 5.10 of BLEP 2012, which relates to heritage conservation, is a primary consideration in this matter. Relevant objectives to cl 5.10, are as follows: 5.10 Heritage Conservation (1) The objectives of this clause are as follows: (a) to conserve the environmental heritage of Burwood (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. 1. Also relevant is cl 5.10(4)-(6) which sets out matters requiring consideration before the granting of any development consent. (4) Effect of proposed development on heritage significance 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. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6)." (5) Heritage assessment The consent authority may, before granting consent to any development— (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause. Figure 1 - Extract BLEP 2012 Heritage Map Burwood Development Control Plan 2023 (BDCP 2023) 1. The Burwood Development Control Plan 2023 (BDCP 2023) also sets out a number of objectives and heritage controls relating specifically to the Appian Way Heritage conservation area (s 4.8.1 Appian Way) as well as more general controls for heritage (s 4.7.2 Heritage Controls). 2. The Burwood Development Control Plan 2013 Part 8.3 provides the following Statement of Significance for the Appian Way Heritage Conservation Area, including the Site: "A rare Edwardian bungalow precinct with excellent Federation architectural detail, largely intact, arranged around an unusual and beautifully landscaped oval containing a resident owned recreational and sporting facility. The design and construction of the estate was based on a vision of suburban utopia of its owner George Hoskins who was instrumental in developing the steel industry in NSW. The concept for the design was based on "Garden City" ideas being developed in England and the USA at the time, for example, "Riverside" in Chicago by Frederick Law Olmstead and "Bedford Park", "Port Sunlight" and "Letchworth" in England designed by Barry Parker and Raymond Unwin springing from the "Picturesque Landscaping Movement" of the 18th Century in England." 1. The heritage status of the subject site and the broader conservation area requires specific considerations in the Heritage Act 1977 (the Heritage Act) and The Burra Charter, The Australia ICOMOS Charter for Places of Cultural Significance (The Burra Charter). The Issues 1. The primary issue of disagreement between the parties relates to the heritage aspects of the development and the proposed subdivision. The issue before the Court is the impact of the proposal on the heritage significance of the item, the group, and the AWHCA. These considerations also include matters relating to height, the proposed basement, building appearance and streetscape character, as well as privacy and setbacks. 2. The applicant relied on the expert heritage evidence of Mr John Tropman and the Council relied on the expert heritage evidence of Ms Lisa Truman. The experts prepared a joint report (Ex 4) and gave oral evidence. 3. The Heritage experts have agreed on a number of key facts as a starting point for their evidence. These agreed facts identify the status and significance of the dwellings and overall subdivision in terms of heritage and conservation. 4. The heritage experts agreed on, amongst other things, the following: 1. That the property, when assessed against the NSW Heritage Council guidelines, has areas of buildings of high significance with an element of exceptional significance (for example, the Lychgate at the front of the site). The areas of high significance relate predominantly to the existing dwelling at 2A Appian Way and the street frontage curtilage to that dwelling (including the landscape setting). 2. Due to the current condition of the property, there is a need for substantial repair and conservation works to make the house suitable for habitation. These works are not indicated on the drawings. As such, a detailed Schedule of Conservation Works for the property should be prepared in accordance with the Burra Charter and Assessing Heritage Significance 2023 (the Heritage NSW Guidelines). 3. Given the high level of significance of the property, a Conservation Management Plan for the property should be prepared in accordance with the Heritage NSW Guidelines. 4. A Photographic Archival Record for the property should be prepared in accordance with the Heritage NSW guidelines. 1. The experts note, at par 8 of Ex 4, that the State Heritage Inventory Sheet for the Federation Houses – Appian Way Dwellings, provides the following Statement of Significance: "A rare Edwardian 'garden city' bungalow precinct with excellent Federation Queen Anne and at least one Federation Arts and Crafts architectural and landscape detail, largely intact streetscape, around an unusual and beautifully landscaped oval, containing a resident-owned recreational and sporting facility. The design and construction of the estate was based on a vision of suburban utopia of its owner George Hoskins who was instrumental in developing the steel industry in NSW. The concept for the design was based on 'Garden City' ideas being developed in England and USA at the time, for example, "Riverside" in Chicago by Frederick Law Olmstead and Vaux and "Bedford Park", "Port Sunlight" and "Letchworth" in England designed by Barry Parker and Raymond Unwin springing from the 'Picturesque Landscaping Movement' of the 18th Century in England. The group of Federation era houses associated with the Appian Way HCA, have local significance for their ability to demonstrate early and unique subdivision pattern within Burwood, their unique yet consistent Federation aesthetic, their rarity as a group of dwellings within a garden city suburb, for their association with George Hoskins and for their representative value as fine examples of their type, most with minimal alterations from the public domain." 1. Despite the agreement that a CMP is required, the experts do not agree as to what stage of the proposal the CMP should be prepared. Ms Truman considers, at par 1.1 Ex 4, that, "…given the scale of works required to repair and conserve the house, details of these works must be provided prior to any consent being granted to ensure the original building is appropriately repaired and conserved as part of the development. The works and are not exempt development and the Court must be assured that they are appropriately detailed to ensure the conservation of the item within any development consent." 1. Mr Tropman considers that the CMP could be provided as a condition of consent. 2. The evidence provided by both experts during the site inspection, in Ex 4 and during oral evidence, is that there are substantive works involved in the conservation of the existing dwelling. The agreement on these aspects of the proposal includes the provision of accurate plans indicating the current and proposed use of spaces, elements such as fireplaces and the internal features that are to be conserved. There is also agreement, provided during oral evidence, that a heritage conservation architect should be involved in the resolution of all matters relating to the heritage conservation of the property. 3. In Mr Tropman's opinion, the conservation works could include substantial portions of new roof, plaster work in existing rooms, maintenance and/or reinstatement of fireplaces, conservation and reconstruction of flooring, and some reorganisation of room access and uses. This is in addition to the overall uplift in the appearance of the dwelling. 4. I accept and prefer Ms Truman's expert evidence. The conservation of the existing dwelling is both a fundamental and substantive component of the work required prior to carrying out the proposed works documented by the application. 5. In oral evidence Mr Tropman agreed that a preferred approach, in applications of such heritage significance as this one, was to commence the application process with a well-informed CMP. Mr Trotman observed, that whilst this was the ideal approach, there had been greater flexibility as to when a CMP was prepared in more recent times with other matters he was involved with. Ms Truman remains adamant that a CMP is required in order to properly consider the application. 6. I note the specific reference in BLEP 2012, subcll 5.10(4), (5) and (6), to the mechanisms that facilitate a consent authority requiring a heritage conservation management plan prior to granting development consent. The status of heritage significance of the subject site and the surrounding AWHCA is at the upper level of significance. This proposal is clearly an example where the heritage issues are of such significance that is it important to require a CMP prior to granting of development consent. 7. The development application before the Court does not include documents that could be relied on, such as plans and reports, to inform the court of the proposed conservation management regime. As a result, none of the works described by Mr Tropman would be enforceable if the application were to be approved in its current form. 8. This gives rise to major concerns that are, in my view, an impediment to me granting development consent to this application: 1. The estimated cost of development provided on the development application form is $1.7 million. This amount is to include the major alterations and additions to the existing dwelling on the proposed Lot 1, the new dwelling on the proposed Lot 2 as well as infrastructure work to execute the proposed subdivision. As the application does not currently provide for any conservation work, I am left to assume that the cost of development does not include the conservation work and therefore the cost of the works will increase significantly. This would include a substantive new roof, or part thereof, refurbishment of fireplaces, reinstatement of plasterwork, reinstatement of ceilings, conservation and replacement of flooring and windows and overall refurbishment of the dwelling. I have no comfort that the applicant is either aware of the cost of that conservation work nor has a commitment to undertake that work within the overall cost of the development. 2. The Court is being asked to grant development consent to alterations and additions to a significant heritage item with no clear understanding of the work entailed in the conservation component of that application. The current application is devoid of substantive detail on the conservation works and they are not part of the development application that is before the Court. The Court has no comfort that the conservation work will be undertaken. The proposed new dwelling and subdivision 1. The heritage listings and material pertaining to the significance of Verona describes the dwelling and property as "the Crown" in the Appian Way. The statement of significance for the group of Federation houses in the Appian Way is quoted by Ms Truman at par 6.12 of the joint report and says that the houses: "have local significance for their ability to demonstrate early and unique subdivision pattern within Burwood, their unique yet consistent Federation aesthetic, their rarity as a group of dwellings within a garden city suburb, for their association with George Hoskins and for their representative value as fine examples of their type, most with minimal alterations from the public domain." 1. At par 6.18 Ms Truman says, in reference to the new dwelling, "due to the placement of the existing building on the site, the dwelling would be demonstrably different to the other dwellings in Appian Way in terms of setback and size". Ms Truman makes a statement at par 5.8 that interprets the outcomes of the design against the heritage criteria and says "the second storey of the addition, which would be visible from the street, will have a major adverse impact on the significance of the heritage conservation area and is inconsistent with the relevant controls in DCP section 4.8, including P64 for which states "buildings are to be asymmetrical in plan and massing and of single storey construction. The scale and style of new development should be in sympathy with the original stylistic development within the Conservation Area"". 2. Ms Truman also says at par 5.10: "The proposed upper level of the rear addition will be highly visible from the public domain (in views from the west) and has a bulk, scale, form, setbacks and architectural character that will identify it as a new dwelling rather than part of the original development of the site. This will have a major adverse impact on the significance and setting of the Appian Way." 1. I am persuaded by the evidence of Ms Truman. The creation of a new allotment in the Appian Way estate and the subsequent construction of a new dwelling would erode the key Federation attributes that exist in the subdivision. This was particularly evident when viewing Verona and the adjacent Federation style dwelling at 2 Appian Way (adjoining to the west) from the public domain both in front of the site, and from nearby locations. The intrusion would erode the acknowledged rarity of these dwellings as a group. 2. Ms Truman has demonstrated to the Court that the proposal is inconsistent with the heritage controls and outcomes that underpin the heritage status of the APHCA and the dwellings within. The creation of an additional allotment in the AWHAC, between 2A and 2 Appian Way, would only serve to detract from the intact nature of the Federation subdivision and the integrity of both the heritage items at 2A and 2 Appian Way. As a result, the proposal for the creation of a new allotment with subsequent new dwellings is inconsistent with the heritage values and outcomes in the BDCP 2023 and is therefore unacceptable. Conclusions 1. After a considered evaluation of the evidence, and an assessment of the matters for consideration in s 4.15(b) of the EPA Act, I have concluded that the proposal is likely to have detrimental impacts, as described above, and is therefore unacceptable. There are two main areas that the proposal fails: 1. Firstly, the absence of a Conservation Management Plan is critical given the sensitivities and importance of the site and the surrounding AWHCA. The nature and extent of the work required must form part of the development application that informs whether the proposed additions and future subdivision are appropriate in the context of the heritage significance of the development. 2. Secondly, the proposed subdivision and new dwelling are in inconsistent with the intact nature and rarity of this Federation precinct. The new dwelling would sit between two fine examples of Federation housing (one already described as the "jewel in the crown") and would diminish the intact nature of the current setting that the AWHCA seeks to preserve. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. Development Application No. 67/2023 for the subdivision of the site into 2 lots, alterations and additions to the existing dwelling house on the proposed Lot 1 (including the construction of a new swimming pool and basement parking), plus alterations, additions and the conversion of the existing laundry/garage building on the proposed Lot 2 (to create a new 2 storey dwelling house), along with associated stormwater works, landscaping and tree removal on the land at 2A Appian Way, Burwood, is refused. 3. The exhibits are returned with the exception of Exhibits 2, B and C. …………………… S Harding AC Acting 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: 13 August 2024