Land and Environment Court of New South Wales CITATION : Michael Stuart Architects P/L v Woollahra MC [2005] NSWLEC 694 APPLICANT Michael Stuart Architects Pty Limited PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10630 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- repair and alteration to a fence on a heritage listed property Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Rules 1996 Development Control Plan and Fencing Code Gee v Port Stephens Council [2003] ; CASES CITED: Aldi v Holroyd City Council [2005] NSWLEC 338 DATES OF HEARING: 9/11/2005 EX TEMPORE JUDGMENT DATE : 12/06/2005 APPLICANT Mr A. Abbott LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 9 November 2005 10630 of 2005 Michael Stuart Architects Pty Limited v Woollahra Municipal Council JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. Background 1 This appeal is against council's refusal of a development application for the repair and alteration to part of a front and side body fence on a heritage listed property situation at 4 Sutherland Crescent, Darling Point. 2 The heritage listing includes the house and garden, of which the sandstone fence is part. The house was built in 1924-25 and is part of the Etham Estate. The fence is described as: "a low wall, which borders the corner of the site along the front boundary. The wall curves around the corner and has an attractive gate. The low wall retains the front garden behind, which is generally higher than the footpath level. The wall has several piers which rise above the level of the low retaining wall and a chain which hangs between the pier." 3 At the view the applicant explained his families association/ownership of the property since 1926. He says that the purpose of the development is to repair parts of the wall/fence to ensure its stability and also to increase its height by 300 mm to provide for effective soil retention for the garden and also allow display of the rear, bevelled edge of the sandstone capping block. 4 The proposed increase in height is to be achieved by way of removing and repairing the capping and introduction of a new 300 mm sandstone course below this capping level. Planning controls 5 The property is subject to a number of planning controls as listed in the Statement of Basic Facts. Of particular relevance are the provision of: a) Woollahra Local Environmental Plan 1995 ; under which the site is zoned Residential 2(b) and the house and garden is listed as a heritage item and is in a heritage conservation area. Clauses 26-28 deal with controls and restrictions for heritage items and contains the following heritage conservation objectives in cl 2(2)(g). i) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas. iii) to encourage the restoration or reconstruction of buildings or works, which are heritage items or buildings, and works that contribute to the character of heritage conservation areas. 6 Clause 26 deals with alterations to heritage building or works. 7 Clause 28 contains controls relative to the heritage conservation area, which requires the consent authority to take into consideration to extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area. 8 The overall effect of these controls is that the proposal is permissible with consent. 9 b) Woollahra Residential Development Control Plan 1999; contains the controls for boundary fences in terms of heights, streetscape, impacts and amenity. The evidence 10 Detailed evidence on behalf of the council was presented by: + Ms D. Fellows – town planner + Ms K. Higgins – heritage architect/planner 11 For the applicant detailed evidence was presented by: + Mr A. Abbott – applicant/property owner + Mr D. Kettle – consultant town planner + Mr G. Patch – consultant heritage architect/planner + Mr J. Swann – stonemason, heritage restoration contractor 12 At the site inspection the applicant referred to sections of the existing wall/fence that were insecure and indicated his desire to repair these faults and to also concurrently adapt the wall with the additional 300 mm sandstone course, under the capping stone to improve soil retention in the garden. The adaption works are to be consistent with the style and design of the existing wall. 13 Following discussion between the experts, there was agreement that the repair work should be undertaken, although Ms Higgins preferred that this be done in accordance with a predetermined plan. I accept that this agreement is appropriate to allow the repair work to the fence, on a conditional basis. 14 The next issue concerns the effect of introducing the additional 300 mm course of sandstone in order to retain the garden soil, which has apparently washed over the wall, onto the footpath and down the council storm water drain for many years, according to Mr Abbott. 15 In support of the proposal, Mr Abbott submitted details of the property over his families ownership, which are different to the detailing contained within the statement of significance for the building and consequently questions its reliability. Irrespective of this, the statement only makes limited specific reference to the perimeter fence. 16 However in the Residential DCP for the Etham Avenue heritage conservation area the following reference is made: The consistency of the dominant roof forms and stylistic elements such as verandas, porches, bay windows and chimneys, semi transparent front fencing and front gardens without terracing contributes to the strong streetscape qualities and create an aesthetically pleasing character. 17 From the examination of the heritage experts, I understand that the front garden once would have been an important element of the original house and surroundings. Mr Abbott confirmed details of planting activities in the garden area over a considerable period. He also says that the existing levels of the front garden and lawn have remained substantially the same as existing, over the past 50 years. 18 As there was no substantive evidence to contradict this, I accept that the levels of the garden and lawn have existed for a considerable time and it is on the basis of these relatively flat levels, that the garden component was listed as part of the heritage item. 19 Accordingly Mr Abbott says he wishes to maintain the gardens and this is best achieved by preventing the soil washing. Also, he would like to display the back edge of the bevelled capping stone. 20 Insofar as Ms Higgins accepts the contribution of the garden element, nevertheless she says it could be stabilised by reducing its height together with the lawn by some 400mm. 21 Leaving the heritage impacts aside, momentarily, I accept the practicalities of the proposal that the raised wall will retain the garden and maintain the existing garden and lawn level, which appears to consistent with the obvious horizontal elements of the garden and house. In my assessment the sloped lawn with garden wall would appear somewhat inconsistent. 22 With respect to the heritage impacts, I note initially that one of the reasons Ms Higgin disapproved of the proposal was because it would interfere with "the principal characteristics of federation front walls". However in cross examination she was unable to specify these characteristics, (with particular reference to height), to allow objective assessment of the proposed incremental change of 300mm. 23 Insofar as the statement of significance refers to the fence in the following terms: "The property has a low sandstone and chain fence on the frontage of Sutherland Crescent [SIC]" Ms Higgins agreed that the additional 300mm would still result in the adapted fence being classified as a "low fence", and comply with the stated description. 24 Therefore I am inclined to discount Ms Higgins concerns in this regard and instead rely on the following conclusion of Mr Patch. "Impacts on the heritage significance of the item will be slight as the nature of the works is sympathetic to and consistent with that of the existing fence. The setting of the heritage item to the subject site and others in the vicinity 'see Burra Charter Art.8] will not be adversely affected by the proposed works as they are sympathetic to the existing and will not unduly screen or alter views to or from the item itself, other items in the vicinity nor give rise to impacts on the character of the streetscape generally. There will be no adverse impacts on the Etham Avenue Conservation Area." 25 An associated issue then covers the interim appearance of the wall, based on the materials to be used and method of construction proposed. Mr Swann is an experienced stonemason and according to his CV has undertaken an impressive list of restoration of heritage stone structures. He explained how the existing wall could be carefully repaired. His preference is that the additional course be laid in "new" matching sandstone, which could take 5-15 years to reach the colour/patina of the existing wall. He did not see the benefit of using reclaimed sandstone. 26 On this aspect, I am impressed by the apparent commitment of Mr Abbott to repair and adapt the wall/fence to enhance the heritage item. Accordingly he says that he will accept a condition to investigate and endeavour to find suitable reclaimed, weathered sandstone. In my opinion, this would be a more acceptable outcome for the visual amenity, considering the extent of the 300mm course, over the period required for the necessary weathering. I therefore consider this adaption work of increasing the wall height by 300mm could be allowed subject to a deferred commencement condition regarding use of reclaimed/weather sandstone as 1st preference subject to council approval of the proposed material. 27 Apart from these considerations, I note there are other planning controls in the Residential DCP covering height, style and amenity impacts of fences. Detailed assessment of these controls has been undertaken by both the planners Mr Kettle and Ms Fellows. Whilst Ms Fellows initially concluded that the wall/fence was unacceptable, after her cross examination she subsequently agreed that "the there was diversity in the streetscape and that the proposal was acceptable and would not destroy the streetscape." 28 From his detailed assessment of these controls, Mr Kettle concluded: I consider that the proposed reconstruction and minor heightening of the fence/wall at No. 4 Sutherland Crescent should be approved for the following reasons: 1. The proposed minor works will have no significant effect on the streetscape of the locality as there is no cohesive streetscape along Sutherland Crescent. Clauses 4.1.1 and 5.1.1 of Woollahra Residential DCP 1999 assume that there is a "cohesive" streetscape, which, by observation, does not exist on Sutherland Crescent. The proposed development will not therefore adversely affect the streetscape or the pedestrian environment. 2. The proposed development complies with Objectives 1, 3 and 4 and Performance Criteria 1, 2, 11 and 13 of s 5.4. There may be a minor non-compliance with Performance Criteria 4 however, any such variation is justified for the following reasons: a. the increase in the height of the wall maintains the existing character of the structure; b. the proposal is sympathetic to the topography; c. the proposal is supported by Mr Greg Patch, heritage adviser and Mr Jasper Swann, stone mason; d. the proposal does not have an adverse effect on the streetscape; e. the proposal does not adversely affect the pedestrian environment or visibility to the street from the dwelling house; f. the proposal uses the existing sandstone as recycled material. 29 From my consideration of the evidence, I am satisfied to accept this assessment of the relevant planning controls, as reasonable in the circumstance and adopt this conclusion. Conclusion 30 Having considered the evidence, and undertaken a view I consider this application merits consent, subject to appropriate conditions, which need to be resolved by the parties. 31 My assessment of the proposal is based on the heritage classification of the property, which includes the front garden and wall/fence. This fence requires some repairs and can appropriately be adapted so as to maintain the heritage integrity of the fences contribution. 32 From the evidence I am also satisfied that the maintenance of the front garden area is an important contributory element of the listed grounds. Its contribution can be enhanced by the adapted, raised 300mm wall, which is necessary to effectively retain the garden soil and allow better garden displays, and minimise environmental dis-amenity due to soil and water run off from the property. 33 Accordingly I am satisfied to rely on Mr Patches conclusion that the combined effect of the repair work and adaption of the wall represents a reasonable balance in terms of compliance with the relevant planning controls contained in LEP 1995. In addition to this, I particularly note that the recommendation for the wall in the heritage inventory sheet is: The existing sandstone fencing should be maintained around the major boundaries to allow views and vistas of the building within the context of the streetscape. 34 It is apparent from the site inspection that the topography of the surrounding area is such that the public domain is noticeably lower than the fence/wall, lawn and building. However the proposal to increase the height of the fence by 300mm will still result in the (repaired) heritage fence being retained around the major boundaries and excellent views and vistas of the building maintained, any change to this would be marginal, if discernible at all. 35 Accordingly I am satisfied that the objectives for the heritage conservation area are reasonably achieved. Therefore, subject to the finalisation of appropriate and reasonable conditions, consent could be granted. ___________________ R Hussey Commissioner of the Court Ljr/rjs 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.