Hanley v Baulkham Hills Shire Council [2004] NSWLEC 485

Land and Environment Court of New South Wales

CITATION : Hanley v Baulkham Hills Shire Council [2004] NSWLEC 485 APPLICANT Paul Hanley PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10296 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- rear deck extension to a heritage item - materials of construction - minimisation of impact on heritage significance Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 1991 Development Control Plan No. 10 Heritage CASES CITED: DATES OF HEARING: 20/08/2004 EX TEMPORE 08/20/2004 JUDGMENT DATE :

APPLICANT Mr S Klinger, solicitor SOLICITORS Steven Klinger LEGAL REPRESENTATIVES: RESPONDENT Mr A Wheally, solicitor SOLICITORS Pricewaterhouse Coopers Legal

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

20 August 2004

10296 of 2004 Paul Hanley v Baulkham Hills Shire Council

JUDGMENT

1 This is a judgment at an on-site hearing held on the 20 August 2004 in appeal No. 10296 of 2004 in the matter of P Hanley and Baulkham Hills Shire Council in regard to conditions of consent for a rear elevated deck that was approved by the council in consent dated 11 May 2004. 2 This is at Lot 8 DP 1014035 known as Unit 8 at 174 Old Northern Road, Castle Hill. The applicant had appealed against Conditions 4 and 5 of approval application No. 590/2004/LA. 3 Those conditions required that the floor of the deck be constructed in timber, with compressed sheet floor panels and planter boxes on the outer sides of the deck just inside a timber balustrade. These conditions were originally imposed due to the building being a heritage item. It was a house known as Durham Park and there was a statement of heritage significance included in the report in Exhibit 3 from the Baulkham Hills Heritage Study 1993-1994 which said that the house stands on part of land granted to Thomas Bradley, a free settler of 1799 who was granted the land in 1807. 4 The present house was built in 1923 by Mr & Mrs Meloy, breeders of Durham cattle, a shorthorn breed of beef cattle which originated in Durham, England. The house was built of an unusual brown brick on a sandstone foundation. The property has been used as a wedding reception centre since 1964. Its heritage significance is: As evidence of suburban subdivision influenced by the opening of tramway in 1910 in the locality giving rise to a collection of early suburban houses along Old Northern Road with spacious grounds and formal mature garden, an important element along Old Northern Road. 5 The applicant wished to amend the design of the rear deck to incorporate a concrete slab, with a brick planter box around its outer perimeters with sandstone capping, and a small timber balustrade on the outside edge. 6 The deck was to be elevated. There was to be excavation underneath to allow cars to be parked beneath away from inclement weather. The applicant was concerned that any other form of deck could lead to weather reaching the cars, and preferred concrete. A concrete slab was required to support the brick planter boxes which were of a higher quality and more closely to the quality of the heritage item than the previous design would be. 7 There was to be additional screen planting of pine trees between the deck and the boundary in order to ensure the privacy of the nearby other houses on the strata title of the community strata subdivision. 8 In considering the evidence the Court was taken to the Baulkham Hills Local Environmental Plan 1991 to objective cl 2(1)(d) and cl 2(2)(j) requiring that any alterations or additions to buildings be compatible with the host building and protect the heritage of an heritage item. 9 The property was in Zone 2(b) Residential and the proposal was permissible with consent. The principle concern was that the house, Unit No. 8, was on Sch 1 of the Local Environmental Plan as a heritage item and therefore the provisions of cl 18 are applied. Also applicable was Development Control Plan No. 3 cll 1.3 and cll 3.19 and Development Control Plan No. 10 on Heritage especially cl 5.3 which applied to additions and alterations. 10 By initially proposing the timber deck, it was a temporary structure that in the future could be removed to restore the house in its original state. 11 Mr Workman the council's heritage planner had furnished a further memorandum which was in Exhibit 4, and others were in Exhibit 1. They indicated that the conversion to a concrete floor would not affect the significance of the heritage item any more than the original lightweight deck, provided it could be an independent structure to enable it to be removed. Being independent it would give clear definition between the heritage item and the future extensions. The deck was at the rear of the house, on one of the least likely to be seen elevations and certainly not visible from the street. And due to the boundary screen vegetation it would hardly be visible from the other adjoining houses on the subject property. 12 During the hearing additional conditions were imposed that required any excavations to ensure that there was no disturbance to the existing structural brickwork and sandstone base courses. And, that any exposed under pinning should be finished in sandstone to match the existing. Also that the deck must be totally independent of the house structurally and supported on its own columns and beams, so that once again there would be no disturbance of, or attachment to the existing brickwork or sandstone wall. 13 In Condition 2 of the draft conditions there were annotations in regard to additional screen tree plantings and the landscape plan. 14 The on-site hearing was attended, for the applicant by: - Mr S Klinger, solicitor and - Mrs Hanley