Land and Environment Court of New South Wales CITATION : G K Morgan Pty Ltd v Lane Cove Council [2006] NSWLEC 304 APPLICANT G K Morgan PARTIES : RESPONDENT Lane Cove Council FILE NUMBER(S) : 11173 of 2005 CORAM: Tuor C KEY ISSUES: Development Application :- alterations and additions to existing house, subdivision and construction of new house impact on heritage significance LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 CASES CITED: G K Morgan Pty Ltd v Lane Cove Council NSWLEC 163; Segal & Anor v Waverley Council [2005] NSWCA 310 DATES OF HEARING: 2 & 3 March 2006 DATE OF JUDGMENT: 06/05/2006 APPLICANT Mr J Cole, solicitor of Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 5 June 2006 11173 of 2005 GK Morgan Investments Pty Ltd v Lane Cove Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Lane Cove Council (the council) of a development application (D226/05) under the Environmental Planning and Assessment Act 1979 for partial demolition and alterations and additions to an existing house, subdivision into two allotments and construction of a two storey house on the proposed new lot at 88 Northwood Road, Northwood (the site). The site and its context 2 The site is on a corner bounded by three streets. It is generally rectangular and has an area of 1347sqm. Its frontage to Northwood Road and Eva Street is about 20m and the frontage to Cliff Road is about 71.5m. The boundary to the south adjoins another house and is about 63m. 3 The site is developed with a single storey house. It has a number of trees in the rear garden and a mixture of shrubs alone the southern boundary in the front garden. There are three mature Canary Island Date Palms on the verge of Northwood Road and nine Oleander bushes along the verge on the northern boundary. 4 The area is characterised by detached one and two storey houses on relatively large allotments with established gardens and generous front setbacks. Some larger houses on the opposite side of Northwood Road have been converted to flats. Eva Street has more of the character of a lane with mostly rear frontages providing access to garages. Adjoining the site to the south is a group of three houses, which were built around the same period as the house on this site. Background 5 The application was lodged on 5 August 2005. Council notified the application to adjoining residents and received 48 submissions. 6 The applicant lodged a class 1 appeal on 14 October 2005 against council's deemed refusal of the application. Council refused the application on 12 December 2005. 7 Council approved an earlier development application (D78/01) for substantial alterations and additions to the existing house in October 2001. This approval has not been implemented. 8 Another development application (DA18/04) by the same applicant was the subject of a Land and Environment Court Appeal (11085 of 2004). Bly C dismissed the appeal on 21 April 2005 (G K Morgan Pty Ltd v Lane Cove Council NSWLEC 163). The applicant submits that the current application takes into account the findings in his judgment. 9 The parties disagreed on the extent to which I should consider the previous decision of Bly C. Mr Cole, for the applicant, submitted that the findings of Bly C and the previous application were relevant matters to be considered. Further, he submitted that I should reach the same conclusion as Bly C for those aspects of the proposal, such as the subdivision, which remain the same as the previous application and which Bly C had found to be acceptable. 10 Whereas Mr Griffiths, for the council, held the opposite opinion that the application must be considered on its own merits and that in accordance with the decision in Segal & Anor v Waverley Council [2005] NSWCA 310 the Court is not bound to follow the decision of Bly C or even to take it into account if it is irrelevant to the resolution of the contested issues. 11 The decision of Bly C is clearly relevant to this appeal, I am not bound to follow his decision and the application must be considered on its merits in the particular circumstances of this case. However, I note that the decision in Segal also stated that it is desirable to refer to the previous decision where relevant. In providing reasons for my decision it is appropriate that this be done in the context of Bly C previous decision. The Proposal 12 The current application is for: · alterations and additions to the existing house, · the subdivision of the site into two Torrens title lots, and · the construction of a new two-storey detached house on the resulting new lot. 13 The additions to the existing house involve a part one and part two level extension at the side and rear. The alterations involve the demolition of some internal fabric and internal rearrangements. 14 The subdivision will create a new lot 2 (88 Northwood) with an area of 777 sq m which would accommodate the existing house. A new lot 1 (88A Northwood Road) with an area of 570 sq m is to accommodate the new dwelling. Lot 2 will have frontages to Northwood Road and Cliff Road. Car access to a single garage will be off Cliff Road. Lot 1 will have frontages to Cliff Road and Eva Street with car access to a double garage off Eva Street. 15 A number of trees are to be removed to accommodate the new house which is designed in a U shape around a large cheese tree and is contemporary in design. Planning Framework 16 The site is zoned Residential 2(a2) under Lane Cove Local Environmental Plan 1987 (LEP 1987). Dwelling houses and subdivision are permissible with development consent. Clause 9 (3) of the LEP provides that consent shall not be granted unless the proposal is consistent with the objectives of the relevant zone. 17 The objective of the 2(a2) zone is: To retain the existing residential amenity of detached single-family dwelling areas. New dwelling houses or extensions of existing dwelling houses will be permitted only where they would not be highly visible when viewed from the Lane Cove River or Parramatta River. 18 Under LEP 1987, the existing house is one of four separately identified houses together comprising a heritage item and referred to as B122 in Schedule 3 of the LEP. There are a number of other heritage items in the vicinity of the site. 19 Clause 18A of LEP 1987 relevantly provides that consent is required for alterations to a heritage item. Sub cl (3) provides that: When determining a development application required by this clause, the council must take into consideration the extent to which carrying out the proposed development would affect the heritage significance of the heritage item or heritage conservation area. 20 The site is not included within a conservation area under LEP 1987. 21 Clause 18E requires that: The council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item or archaeological site, and on the setting, when determining an application for consent to carry out development on adjoining land. 22 Also applicable is Council's Residential Zones Development Control Plan (the DCP). Part 7 of the DCP sets a minimum lot size of 550 square metres and the proposed subdivision meets this requirement. 23 The Code and Development Application Checklist for Dwelling houses, Fences, Private Swimming Pools and Outbuildings (the Code) is also relevant. The Code contains applicable standards relating to floor space ratio, height, solar access, energy efficiency, privacy and overlooking, building line, setbacks to side boundaries and landscaping. 24 There was no dispute that the two houses meet the maximum floor space ratio, landscaped area and height controls. The council expressed no concerns in relation to solar access, energy efficiency, overshadowing or privacy. There are some setback non-compliances. The issues and evidence 25 The amended Statement of Issues before the Court contained ten issues. These can be summarised into the following key issues: 1. whether the proposal would have and acceptable impact on the heritage significance of the item. 2. whether the removal of trees and impact of the proposal on the cheese tree is acceptable 26 These issues were also the key issues raised in the residents' submissions and reiterated by those residents who gave evidence on site. Other issues of concern to the residents included: · Traffic safety issues resulting from the new garage onto Eva Street which is a bus route. · Overdevelopment of the site. · The subdivision would be an inappropriate precedent. 27 Expert town planning and heritage evidence was given by Mr M Robinson, for the council, and Mr B McDonald, for the applicant. Ms S Butler, for the council and Ms C Mackenzie, for the applicant, provided arborial advice. 28 The owners of 90 Northwood Road, Mr and Mrs Legrand were concerned about the loss of solar access and the bulk and scale of the proposal, particularly the new dwelling when viewed from their rear garden. They considered the proposal would have an adverse impact on the heritage significance of their property and sought leave to have their own heritage expert, Mr I Stapleton, give evidence. This was supported by council but opposed by the applicant. For the reasons, which I provided in the hearing, this leave was not granted. Mr Stapleton was present on the site inspection and it was agreed could point out matters raised in the owners' submissions, but he did not provide any expert opinion. Impact on heritage significance of the item 29 The definition of a heritage item under LEP 1987 is: heritage item means a building, work, relic, tree or place of heritage significance to the area of Lane Cove that is described in Schedule 3 or 6 and shown on the heritage map. 30 Schedule 3 separately lists Nos. 88, 90, 94 and 96 Northwood Road but they are identified with a common reference number B122. Each property is identified separately on the heritage map. The reference number refers to the inventory listing in the Lane Cove Heritage Study (the study) undertaken in 1987, which formed the basis for the heritage listing in LEP 1987. 31 The study identified the houses as a group as item number B122 described in the Inventory Sheet as follows: Group of single-storey bungalows set well back from the road. The houses of various dates form a homogenous group in scale and character… No. 88: relatively intact Federation brick bungalow on corner block with remnant garden layout and planting (for more details see back of form). Nos. 96 & 94: single-storey Californian bungalow style homes with features typical of style. Remnant planting. No. 90: single storey bungalow with decorative timber to front facade enclosed veranda and remnant planting. 32 More details about No 88 include: The later brick fence encloses the garden, which retains the early layout with curved (now sandstone) paths and beds of shrubs and roses. Of architectural and cultural significance because both building and garden are intact. 33 The inventory sheet states that the reason for the listing is: Group of single-storey well built houses of similar scale and character set on large suburban blocks with remnant planting, on the road leading from the ferry. Indicative of the scale and quality and character of suburban development occurring in Northwood at the time. 34 In considering what comprises the heritage item Bly C found: It seems to me that the intention of the LEP is to protect these four properties as a group. It is plain that each property has its own heritage significance but considered together they have an overall significance greater than the individual significance of each of them… Clause 18A(3) of the LEP relevantly requires that when determining a development application, consideration must be given of the extent to which the proposed development under consideration would affect the heritage significance of the heritage item. I am satisfied that for the purposes of this clause the four properties together comprise the heritage item, but in the end little turns on this. 35 I accept the conclusion of Bly C that the four properties comprise the item, however, in this appeal I do not consider that "little turns on this". Rather the impact of the proposal on the heritage item as a whole must be considered, particularly the impact on the house and garden at No 88 as well as the adjoining property at 90 Northwood Road. 36 The heritage experts agreed with the conclusion of Commissioner Bly C but disagreed about the significance of the rear garden as part of the item. Mr Robinson considered the garden formed part of the significance of the item, whereas Mr McDonald considered that the inventory sheet only referred to the formal front garden. 37 In response to these issues being raised in the previous appeal, council has adopted an updated inventory sheet for No 88 prepared by Mr Robinson. 38 The revised Statement of Significance states: The subdivision and the cottage demonstrate an important phase in the establishment and development of Northwood as a residential suburb which occurred with the breaking up of the original land grants of large estates such as Northwood House in the boom period of residential growth in the early years of the 20th century. The property is an integral and important component of a homogenous group of properties of similar size, scale, materials and architectural and landscape character identified as Heritage Item B122, and gains significance because of this association. This group of properties demonstrates the quality and character of suburban development occurring in Northwood in the early years of the 20th century. The cottage is a remarkably intact representative example of a modest but well built residence built in the Federation Queen Anne style and its associated formal and informal garden setting. The site occupies a prominent corner with three street frontages and, with its large trees and palms dating from the earliest period of its development, contributes strongly to the distinctive landscape character of the locality. Three ornamental pear trees on the allotment may be rare survivors of an early orchard associated with Northwood House and should be further investigated. 39 Mr McDonald was critical of this revised inventory sheet as it was prepared to support the listing of No 88 of as an individual item, which has not occurred, and it does not update the listing for each of the houses in the group. He also maintained his position that the rear garden "does not demonstrate an intact early 20th century design, layout or character but an evolved landscape" and as such was not part of the significance of the item. In his opinion, based on the original inventory sheet, "the primary significance of the group is derived from the collective contribution of the houses and front gardens to the streetscape character of this part of Northwood Road, being the access to the ferry wharf". 40 Mr Robinson considered the rear garden to be an "integral part of the significance of the item's heritage significance" which "should remain largely as it is." 41 Mr McDonald also considered that the other houses in the group have: been substantially altered from a situation in which Federation period houses were set on large sites with deep rear gardens to the present situation where the rear gardens have been largely taken up by large additions, garages, swimming pools and other changes. 42 The experts agreed that the site remains largely unaltered with no significant additions to the house and it remains on a large site with a number of large canopy trees. Mr McDonald considered that it would be "unreasonable to deny the opportunity for No 88 Northwood Road to provide increased residential accommodation that other properties have achieved." 43 Mr Robinson accepted that other houses and gardens have been altered and that other properties in the area have been subdivided. However, he noted that the original subdivision pattern remains in the block in which the site is located. He considered the changes that had occurred on other sites were additions to the original houses and the construction of secondary, separate structures at the rear of the garden, which retained the central open space along the block and its historic subdivision pattern. 44 Mr McDonald and Mr Robinson agreed that the proposal would not impact on the significance of the houses and their streetscape contribution from Northwood Road. They also agreed that the additions to the existing house were satisfactory, although Mr Robinson considered that "they approach the upper limit of acceptable size, bulk and scale and would only be acceptable if the only additional development on the site." 45 Mr McDonald considered the appearance from Northwood Road to be the primary significance of the item, and therefore concluded that the proposal maintained this significance. He considered that the separation between the existing dwelling and the new dwelling was sufficient to maintain the visual curtilage of the house. The retention of the cheese tree and the retention and replanting of palm trees on the site "would produce a pattern of development that is consistent with the balance of built form to landscape of the existing nearby properties". He considered the contemporary design of the new dwelling to be acceptable. 46 Mr Robinson considered the erection of a second dwelling on the site "would adversely change the relationship of the existing cottage with its garden setting affecting the heritage significance of the house and its setting and its contribution to the group of four heritage listed dwellings and the locality generally." 47 In Mr Robinson's opinion the proposed house was "excessively large in terms of its site coverage, is too high and too bulky and too close to the rear of the rear of the extensions proposed for the existing cottage and the Cliff Road boundary". While he recognised that the new house was an "admirable design" he did not think its form, design and character to be compatible with the existing house and other houses in the area. 48 The experts provided an overlay of a photomontage that they agreed was indicative of the appearance on the proposed house from No 90 Northwood Road but they disagreed on its likely impact. Mr Macdonald considered the proposal would have an acceptable impact on No 90 as its primary significance was also its relationship to Northwood Road. He recognised that the new house would be seen from the garden of No 90 but considered this to have an acceptable heritage impact. He stated that the separation between the house at No 90 and its garage was 14m and that a similar separation (between about 10m and 14m) was achieved between the existing house and the new house at No 88. In his opinion, this separation was sufficient to retain the corridor of open space that runs between the houses and the structures that face Eva Street. 49 Mr Robinson considered that the proposed house would make a "dramatic change" to the back garden and landscape character of the houses in the group, including No 90. The proposed house is clearly visible from the back garden of No 90 and not effectively screened by landscaping. He did not agree that the garage structure in No 90 could be compared to the bulk of a new house and that a part of the garden in No 90 extended to Eva Stree, some 20m. In Mr Robinson's opinion, the bulk of the new house and the reduction in the "green belt' would adversely impact on the setting of No 90. 50 Mr Robinson and Mr MacDonald agreed that the proposal would have no unacceptable overshadowing and privacy impacts on 90 Northwood Road. Trees 51 The proposal involves the removal of four of the five canopy trees on the site. There are 21 palm trees on the site, of varying and species and height. The canopy of these trees and palms is visible and contributes to the streetscape and character of the area. Three of the canopy trees are the ornamental pear trees about which there was debate as to whether they formed part of the original orchard of Northwood House. While the veracity of this has not been established, the trees are old and the arborists agree that two of the pear trees are in poor condition and the other in fair condition. Ms Butler considered that this tree could be retained whereas Ms Mackenzie considered that all of the trees were in poor structural condition and posed a danger and should be removed regardless of the development. 52 The landscape plan proposes three small canopy trees to replace those being removed. The experts agreed that an additional large canopy tree could be planted in the front garden of the existing house but disagreed as to whether these measures were sufficient. Ms Butler considered the removal of the canopy trees would change the landscape character of the area which would not be reinstated with replacement trees. Whereas Ms Mackenzie considered that there would be a short term change but the landscape character which would be restored by the maturity of the palms and smaller replacement trees. 53 The experts also disagreed on the impact of the proposal on the cheese tree. They agreed on appropriate measures including construction techniques and conditions to protect the tree. Ms Butler's main concern was that the area around the cheese tree was to be used as a courtyard for the new house. In her opinion the increase in intensity of use and the changed conditions would impact on the long term survival of the tree. Ms Mackenzie held the contrary view that it would not cause disturbance to the tree. Findings 54 While I accept that the primary significance of the houses is their presentation to Northwood Road I do not accept that the rear gardens, particularly the garden of No 88 is without significance. The site is a prominent corner location and the house in its setting of front, rear and side gardens is part of its significance. The 1987 inventory sheet recognises the intactness of its house and garden and part of the reason for listing as being its "setting on large suburban blocks with remnant planting". I do not accept Mr McDonald's opinion that because of its informality and evolved character, the planting in the rear garden is not part of the significance of the item. However, this does not preclude further development occurring on the site, particularly as other houses in the group have had significant additions and ancillary structures. 55 I do not accept Mr Robinson's evidence that the garden should remain largely in tact, particularly as the agreed arborial evidence is that the pear trees have limited life expectancy. However, to retain the significance of the item it is necessary to retain the scale and character of the group of houses set on large suburban blocks and a degree of the remnant landscaping. 56 The proposed subdivision complies with the minimum requirements of 550sqm in the DCP. The proposed lot 2 is well over the requirement with a site area of 770sqm. However, a large proportion of this area is occupied by the front garden and its significant setbacks from Northwood Road and to the south, way beyond the requirements of the current planning controls. The existing rear garden, with its five large canopy trees and palm trees provides a size of garden which compliments the scale of the front garden and the house. 57 I agree with Bly C that to maintain the significance of the item the entire back garden does not need to be retained. The size of the rear garden and the separation between the new and existing house has been increased from the application that he considered. However, I am not satisfied that the proposed rear garden of the existing house, which for the most part is about 5m deep, provides sufficient setting and space for the existing house, particularly when compared to its front and side setbacks. While the proposal achieves numerical compliance with the controls I do not consider these reflect the existing character of the group of houses that form the heritage item, particularly the relationship of built form to landscape setting. This character should be retained as part of any development of the site. 58 The proposed rear garden of the existing house does not provide sufficient space for canopy trees but does re use some palm trees to provide a screen between the existing and new house. Such an arrangement would be more than acceptable if the existing house were not a heritage item where part of its significance is its garden setting. The retention of the cheese tree provides significant benefit to the appearance of the development from Cliff Road and assists in maintaining the landscape quality of the site. I am satisfied that the measures and conditions will preserve the tree in the short term and the increase in intensity of use around the tree would not be so significant as to severely impact on its life expectancy. 59 However, the cheese tree will appear as part of the new house and I do not consider its retention and the replacement planting to be sufficient to maintain the setting of the existing house when compared to its original setting. 60 The removal of four out of the five large canopy trees and the relocation of the palm trees will alter the landscape quality of the garden setting. The proposed planting is a more formal arrangement and the replacement trees to the rear are smaller. The additional canopy tree proposed for the front garden of the existing house will do little to ameliorate this change. The existing landscaping contributes to the setting of the house and while it is reasonable that this setting should change to provide additional accommodation, as has occurred on other house in the group, the degree of change proposed will adversely impact on the setting. 61 I note that the combined effect of the rear garden of the existing and new house will provide a visual separation of up to 14m. This separation would be sufficient if it were to a secondary structure such as a garage, as is the case on the adjoining property. But I do not consider it to be sufficient separation between the existing house, with its two storey rear addition, and the new two storey house that are clearly visible from Cliff Road. 62 The combination of the reduction in the size of the rear garden relative to the size of the existing house and its front garden and the removal of canopy trees does not retain its setting and therefore the significance of the item and does not meet the requirements of cl 18E of LEP 1987. 63 Bly C considered the alterations and additions to the existing house to have an acceptable impact on 90 Northwood Road but stated that: Despite this I have some concern as to the southern presentation of the new dwelling house to the garden and pool area of No 90. A different somewhat lower and more sensitive design in terms of building bulk would be preferable. 64 The new dwelling is setback approximately 1.9 m from the common boundary with 90 Northwood Road. The length and setback of the two storey component has marginally increased from the scheme considered by Bly C. Due to the change in level the two storey component of the development will be clearly visible from the rear garden of 90 Northwood Road which will impact on its setting. This impact would be acceptable if the house were not also part of the heritage item or if the garden were not part of its significance, but this is not the case. 65 The relationship of the four cottages in the group is one of houses in garden settings to both the front and the rear. The gardens are landscaped to differing degrees but they provide space and a setting for the house and are part of their significance. 66 I note Bly C findings in relation to the historic subdivision that: Given the particular circumstances of this lot, including having three frontages and being larger than other lots in the block together with the fact that other subdivisions have taken place in this area. I do not accept that the subdivision is, per se, problematic nor would it establish an undesirable precedent. If it can be shown that the subdivision is capable of providing for an appropriate form of development then it may be able to be approved. However, because of the problems associated with the extension to the existing house and until such time as these problems are resolved the subdivision should not be approved. 67 I agree with Bly C that the historic subdivision pattern is not of such significance that it cannot be altered. However, the resultant block while complying with the numerical requirements is constrained by the retention of the cheese tree, which limits the location of a new house, the need to provide an appropriate setting for the existing house and 90 Northwood Road and the prominence of its corner location. I accept that the proposed new house has sought to address these constraints and I raise no issue with the contemporary nature of the design and recognise that in the context of surrounding development it is relatively modest in scale. However, for the reasons provided above, I find that the subdivision, due to the particular constraints of this site, results in a form of development that impacts on the significance of the item. Orders 68 For the above reasons the Orders of the Court are: 1. The appeal is dismissed. 2. The development application (D226/05) for partial demolition and alterations and additions to an existing house, subdivision into two allotments and construction of a two storey house on the proposed new lot at 88 Northwood Road, Northwood is refused. 3. The exhibits, except exhibits 3 and 4, may be returned. __________________ Annelise Tuor 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.