Land and Environment Court of New South Wales CITATION : APD Building Pty Ltd v Woollahra Municipal Council [2007] NSWLEC 32 APPLICANT APD Building Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10410 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- heritage conservation area, contributory item, quality of the existing house as a contributory item, impact of the alterations and additions on the contributory item and the significance of the conservation area. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 State Environmental Planning Policy No 55 - Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 DATES OF HEARING: 7/12/2006 and 8/12/2006 DATE OF JUDGMENT: 30 January 2007 APPLICANT Mr A. Pickles, barrister Instructed by Paul A Brown & Co, solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr P. Rigg, solicitor Instructed by Deacons, solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 30 January 2007 10410 of 2006 APD Building Pty Ltd v Woollahra Municipal Council JUDGMENT 1 This is a Class 1 Appeal No. 10410 of 2006 between APD Building Pty Ltd and Woollahra Municipal Council in regard to the deemed refusal of extensive alterations and additions to a house, and a new lap swim pool and garden pavilion at No.5 Balfour Rd, Rose Bay. 2 The council had subsequently refused consent, and in preliminary proceedings the applicant was allowed to amend the plans and the council exhibited them for public comment. 3 The amended plans before me are in Exhibit A, landscape plans in Exhibit B with accompanying shadow diagrams, acoustic analysis of the pool, and heritage assessment reports 4 The site is located in the Beresford Estate Heritage Conservation area, and it is a very small one having only 8 houses in it between New South Head Road and Powell Road. South of Powell Road is the Balfour Road Heritage Conservation Area. None of the 8 houses are listed as a heritage item, but they are all considered to be contributory items. The Site 5 The subject site is located on the eastern side of Balfour Road, is rectangular in shape and has a site area of 557.3 sq m. The subject site has a western frontage to Balfour Road of 12.19 m, northern and southern (side) boundaries of 45.72 m and an eastern (rear) boundary of 12.19 m. The site is generally flat. 6 The site is occupied at present by a single-storey dwelling house with a spacious rear lawn and garden and framed at the street front by a brick wall. The existing dwelling is set back from Balfour Road by approximately 4.5 m, and is largely screened from view by trees which occupy the front lawns of the site. A single carport is located adjacent the western (front) boundary and is accessed by a single crossover from Balfour Road. 7 The subject land is zoned Residential 2(b) and has a maximum height limit of 9.5 m under Woollahra LEP 1995. The proposal 8 The proposed development involves works to the existing single-storey dwelling house, including demolition of the existing hipped roof and replacement with a steeper skillion and gabled roof at the front and demolition of the existing internal and rear ground floor walls, with the retention of the front facade and the side boundary walls, a new flat roofed second floor addition, a new swimming pool, new masonry boundary fences to the sides and rear of the site, landscaping and associated site works. The Neighbours and the Locality 9 Adjoining the property to the north known (3 Balfour Road) is a large two-storey dwelling house, demonstrating the Arts and Crafts style of the Federation era. This style of building is noted as a contributory element within the Conservation Area. The adjoining lot to the north has a battle-axe subdivision, with a three storey block of units' at the rear, and known as 3A Balfour Road. The driveway to No. 3A runs along the north boundary of the site. 10 Adjoining the site to the south and at the corner with Powell Road (7 Balfour Road) consists of a large single storey dwelling house. This building appears to have been constructed in the 1970s and bears no relationship to the general building form within the locale. However, it is noted that the site at 7 Balfour Road is not located within the Balfour Road Precinct on the Beresford Estate Conservation Area. 11 Adjacent the site to the east (2 -- 12 Balfour Road) consists of large Arts and Crafts style dwelling houses that are contributory to the heritage significance of the area and included in the Beresford Estate Conservation Area. 12 The locality is characterised by one to two storey dwelling houses and three storey blocks of units, set on large allotments. The topography of the area is generally flat. Views to Sydney Harbour from the immediate locale are only available from the street, due to the large scale of the buildings and dense tree coverage. Applicable statutes and controls o State Environmental Planning Policy No 55 - Remediation of Land o Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 o Woollahra Local Environmental Plan 1995 o Clause 8- Objectives of the Residential 2(b) zone o Clause 12- Height o Clause 18- Excavation of Land o Clause 19- Harbour Foreshore Scenic Protection Area o Clause 25- Water, wastewater and stormwater system o Clause 27- Development in the Vicinity of Heritage Items o Clause 28- Heritage Conservation Areas o Woollahra Residential Development Control Plan 2003 o Part 4.10 -- Balfour Road Precinct (Beresford Estate HCA) o Part 5.2- Building Size and Location o Part 5.3- Open Space and Landscaping o Part 5.4- Fences and Walls o Part 5.5- Views o Part 5.8- Visual and Acoustic Privacy o Part 5.9- Car parking and driveway o Part 5.10 - Site Facilities Amended Issues 1. Whether the amended site boundary setback to 7 Balfour Road is appropriate with regard to 0 5.2.2 of Woollahra Residential Development Control Plan 2003 ("WRDCP") and the resultant significant overshadowing impacts on the north­facing windows at 7 Balfour Road. 2. Whether compliance with the planning regime can overcome amenity impacts to surrounding properties and achieve a better planning outcome. 3. Whether the amended proposal is inconsistent with WRDCP provisions: 0 5.2.2, C 5.2.12-14, C 5.2.16, 0 5.3.2, C 5.3.2, C 5.3.18, C 5.3.19, 0 5.4.2, 0 5.8. 1, 0 5.10.2 and C 5.10.9. 4. Whether a more appropriate design would result from the deletion of the swimming pool and rear covered deck in conjunction with a redesign to relocate most of the proposed upper level additions at the ground level. The excessive bulk of the proposed dwelling is unable to be situated at ground level due to the presence of the swimming pool. 5. Whether the amended proposal is acceptable with regard to 0 5.3.2, C 5.3.12 and C 5.3.16 of the WRDCP, given the intention to remove the European Ash tree at the northern boundary of the site and the associated impacts on the amenity of the properties at 3 Balfour Road and 3A Balfour Road. 6. Whether the amended proposal results in excessive demolition of the external form and fabric of the existing contributory item and its relationship to the Beresford Estate Heritage Conservation Area, particularly with regard to 0 4.10.2, 0 4.10.3, 0 4.10.6, 0 4.10.8 and 0 4.10.9 and C 4.10.42, C 4.10.44 and C 4.10.46 of Woollahra Residential Development Control Plan 2003. (WRDCP) 7. Whether the amended proposal would adversely affect the heritage significance of the relationship of the existing building within the heritage item group and the heritage conservation area, particularly with regard to clauses 27 and 28 of the Woollahra Local Environment Plan 1995 (as amended)(WLEP). 8. Whether the amended proposal is in the public interest having regard to the objections of the adjoining properties. The Evidence 13 The respondent's evidence was heard form: * Mr & Mrs Brown of No.7 Balfour Road who had a consultant town planner Ms K. Gordon lodge objections and speak on their behalf. * Mr R.A.M. Wilson and Mrs A.R.S. Wilson of No.3 Balfour Road who lodged objections, but were away at the time of the hearing, but had a relative show through the property and house. * Ms M Johnson of Unit 10 No.3A Balfour Road, who lodged and objection, but did not attend the hearing. * Mr M. W. McCubbery development assessment officer for Council. * Mr M. Robinson heritage expert for Council * Mr A. Simpson tree preservation officer for council. 14 The applicant's evidence was heard from: * Ms R. Daniell consultant heritage expert. * Mr G. Palmer consultant horticulture/arborist. 15 The parties had agreed on a Joint Expert in town planning and that the Court should appoint Mr G.A. Shiels in that role. His report is exhibit 3. 16 The concern over contamination of the site is of interest. Apparently a considerable portion of Rose Bay has acid sulphate soils beneath, plus ground water contamination in a plume that emanates from the general location of the golf course. The original contamination is thought to be caused by industrial uses in that location long ago. The council does list an acid sulphate soils map in its LEP for consideration under cl 25D, but the map for the ground water contamination is only an internal reference document. 17 The applicant managed the acid sulphate soil, to the satisfaction of the respondent, by not excavating the swimming pool, it sits no further into the ground than the house foundations and will not disturb the acid sulphate soil. The applicant produced a s149 Certificate of 2005 for the property that does not mention any ground water contamination, and there is no Issue in that regard. Therefore I take that matter no further. 18 The arborists had produced a joint report in Exhibit 4 and agreed that the European Ash tree on the northern boundary and the Cheeze Tree in the south-east corner of the lot should and could be retained. Suitable conditions have been recommended, plus two arising during the hearing, that the proposed BBQ on the deck adjacent the Ash should be relocated across the deck against the wall of the Kitchen, as it is inappropriate adjoining the Ash tree, and that a frangipani tree in the front yard be kept. 19 This resolves issues related to O5.3.2, C5.3.12 and C5.3.16 of the WRDCP. 20 The concerns of the Brown's are to do with loss of sunlight to their northern windows, potential privacy loss for the northern windows, potential noise from activity in the pool. 21 The evidence is that the original design did cause loss of sun to the northern windows, but the amended plans move the proposal's 2nd storey to the north, and reduce the shadow impact as described later in this judgment. 22 The pool would stand about 1.2 m above the ground in the back yard, and it runs from the house almost to the back fence. A garden along the back fence will give privacy from the apartments over the back fence and room for any Cheeze Tree roots. The yard is quite flat as is the whole site. It is intended there would be a 1.8m high boundary masonry wall with a planter trough along the whole length of the pool adjoining the boundary with the Brown's and then a glass acoustic screen between the trough and the pool. The applicant's acoustic expert's report (Mr T. Bohdan) says that will reduce noise from the lap pool to acceptable suburban levels. 23 The applicant says the hedge in the planter trough will give additional visual privacy, and the hedge would be kept low enough to prevent any additional loss of sunlight. 24 The applicant also noted that the northern windows of the Brown's are to bedroom and laundry windows, and the controls only require solar access to north facing living rooms. The Brown's living rooms face east, including the bedroom for an elderly mother. So they are unaffected. 25 On visual privacy, the amended plans only have "see through" windows on the ground floor behind the boundary fence, so visual privacy is retained for the Brown's. Upper floor windows are minimal and use obscured glass. 26 The Brown's were also concerned about noise of rain on a sheet metal roof above the new laundry and dining of the extensions. Metal roofs can have thermal and acoustic insulation fitted directly under the metal sheet that reduces noise to acceptable levels. The applicant accepted a condition to that effect. 27 On noise from the pool, the acoustic expert said that lap pools are not used for noisy activity as much as larger pools. Also the only access to the proposed pool will be from a raised platform at the south-east corner of the lot where steps would go up to the platform under the roof of the garden pavilion. Any splashing around will be done there, the rest of the pool is more likely to be persons swimming for exercise. 28 Ms Gordon noted that the applicants are quite honest in declaring their family includes young children, and that noisy activity is likely, so the acoustic barrier proposed may not be adequate, because it has been designed for lesser expected noise levels. 29 It was put to me a pool away from the Brown's boundary would be better. On that account, it seems to me that if the noise of young children are a concern the 12 m width of the allotment does not give much room for separation, and noise of them at play will carry at almost the same level from anywhere in the yard. Suburbia is particularly attractive for families, and I do not think the typical noise of children at play in their own back yard could be a reason for refusal. The acoustic screen proposed will give more protection than usual in a suburban situation. Windows can be closed in the Brown's house on the few occasions noise might be a problem. 30 As in any situation, if noise is excessive on a regular basis or for extended periods, there are legal provisions to protect the amenity of neighbours. The proposal as now amended is satisfactory in regard to the Brown's concerns. 31 In regard to Ms Johnson's concerns, the retention of the Ash tree satisfies one matter, she also seeks the retention of a frangipanni in the driveway of No.3A that is on the boundary. The applicant assured the court the works would not effect it, and another frangipanni in the front yard of the subject, No.5 would also be kept, along with an avocado tree in the rear north-east corner adjoining No.3A. Another of the concerns was the amended plans bringing the additions closer to the northern boundary, and having more windows that may cause privacy loss and restrict southerly cooling breezes to the units in No.3A. 32 It seems to me that the nearest distance from a window of the proposal to the units is 10m through the branches of the Ash tree. A distance of 9 m is the AMCORD standard for reasonable visual privacy for medium density residential units. Also the angle of view will be oblique in any situation as the proposed house does not overlap the units' building. 33 Because of the lack of overlap, there should be room for breezes to pass between and around the two buildings. I think Ms Johnson concerns are reasonably satisfied. 34 Mr Shiels noted that the Brown's at No.7 had a swim pool themselves, but it is an "in ground". He thought an in ground would give better acoustic performance for neighbours, but realised the acid sulphate soils and contamination potentials might forestall that. He saw the amended plans had the pool almost in compliance with the minimum setback of 1.5m if one measured the distance to the water's edge. With the planter trough and acoustic barrier he said it would be acceptable. He thought the probable reason for the control requiring 1.5 m setback was the assumption that most pools are excavated. 35 He agreed that the proposed lap pool where it came between the Brown's boundary and the house extension occupied space at ground level that could otherwise be used for floor space and reduce the size of the upper floor. 36 He did not see the unusual elongated shape of the kitchen between the pool and the northern deck beside the driveway of No.3A, as necessarily a poor design. To an extent the layout had been dictated by the need to amend the plans to move the house away from the south boundary to maintain sunlight to the Brown's bedroom windows. 37 He agreed the amended design with the pool blocking the south side setback and landscaping blocking the north setback, meant access to the rear yard had to be all through the house. He said many homes are like that. 38 He said the retention of the Ash tree is an important improvement, and whilst he did not like the appearance of a previous set of Exhibit A plans, he did like the set tendered because it had been coloured to show finishes. The previous set had been coloured to Drafting Standards to show construction materials, and it was not attractive. 39 He was asked about his opinion on streetscape and fit of the additions into the conservation area. He said the street elevation is the important one for conservation in his opinion, and he had less concern about modern additions at the rear, they can be designed sympathetically. However he deferred to the heritage and conservation experts for evidence on those aspects. He had not seen their joint report. 40 On shadows on the Brown's he agreed the moving of the 1st floor additions to the north had reduced the shadows, but it had put the north wall into non-compliance with the setback requirement. This would not appease No.3's objection to the additions, they would be even closer, and are still in a contemporary design whereas the Wilson's hoped for a more sympathetic design to the existing house. 41 He formed the opinion that the separation of the Wilson's by the width of the driveway of No.3A (about 3.5 m), and the setback to the Wilson family room windows (about 10m), plus the articulation of the northern façade of the amended proposal, and the retention of the Ash tree, made it acceptable in terms of appearance. 42 He agreed the only height exceedance of 1.74 m above the limit is at the stair wall on the south side adjacent the Brown's garage, and so any impact was minimal. 43 He agreed that to put more floor space on the ground level instead of at the upper floor, it would necessitate extending the ground floor east of alignment with the east façade of the Brown's house and east of alignment with the west façade of No.3A. That is not desirable in his opinion. 44 In looking at the shadow diagrams he agreed that in mid-winter the northern windows of the Brown's got no sun, whereas at the moment they had sun to the upper parts of the windows from 9am until about 2pm midwinter. The improvement the amended plans made is to reduce the period they would be without direct sun. With no drawings to illustrate that, he estimated it would be about 4-6 weeks mid-winter the sun would be lost altogether, then direct sun would slowly return to the window as the weeks advanced to the next equinox. 45 Mr Robinson said a short history of the conservation area and the subject lot, is that it forms part of the original Rose Bay Lodge that had 90 acres. In 1903 the Beresford Estate was subdivided off and was first auctioned and lot 10 of that is the subject site. The subject house was built in 1917, the other houses in the conservation area date from before 1910. The electric tram coming to Rose bay started the growth. 46 What is known as the precinct of Balfour Road has two conservation areas. The Federation - Arts and Crafts period conservation area known as the Beresford Estate north of Powell rd and the Art Deco period conservation area south of Powell Rd known as Balfour Road. A study by Tanner in 1998 first identified them and a second study in 2001-02 by Noel Bell Ridley Smith led to the listings and LEP identification. 47 None of the 8 houses in the Beresford Conservation area are listed heritage items. It was made a separate conservation area to that south of Powell St because it is the core of the early development, the Art Deco period being some 20 years later. 48 Ms Daniell and Mr Robinson agree that Nos.2 to 12 and No.3 are Federation Arts and Crafts style, but No.5 is not, it is more Federation style, and it is a much smaller house than the other contributory items in the conservation area, but it fits in. 49 They agreed also that the studies should have taken the step of evaluating the hierarchy of importance of each house within the conservation area, but that was not done at the time probably due to budgetary constraints. 50 They agreed several of the contributory items on the west side of Balfour had been altered, and No.8 had a complete second floor added. But the changes to the houses had been done in such sympathy to the Arts and Crafts style that the additions were undetectable except perhaps to an expert eye. 51 The experts agreed that controls on contributory items allowed major changes so long as they maintain the character of the original and the conservation area. Controls on full heritage items are much more stringent. 52 The point of departure of the experts is about the character of the subject house and the conservation area, and the need for the additions to be designed in a contemporary style or to match the subject house. 53 Ms Daniell says the subject is not Arts and Crafts and that is the prime character of the conservation area, so the proposal does not have to match the existing house. In her opinion the amended design will be more sympathetic to the Arts and Crafts (A&C) character because the existing roof is to go, and at the street front will have a steeper pitched slate roof and hood over the bay window that are A&C features. The existing carport will be removed, although the carspace will be retained, and the verandah posts will be reinstalled to match the period. 54 The palisade front fence and the rejuvenated landscaping will further enhance the streetscape appearance. 55 Ms Daniell says the inclusion of No.5 in the conservation area is probably a mistake, and it does not contribute to the conservation area A&C character. As a result the loss of most of the existing fabric is acceptable given the proposed design. 56 The design of No.5 as is, has the character of a row house, where the front elevation and the roof form the main "presentation" as seen from the street, the rear is not given special treatment. The A&C houses in the conservation area are designed "in the round" where each elevation is important and there is a dominant roof form, and the houses are in substantial gardens, whereas the subject has a small front yard and narrow side setbacks. The roof of No.5 is not dominant as it stands Ms Daniell said. The proposed new front slate roof would be pitched at 60 degrees, and A&C houses often had that pitch, so it would be an improvement. 57 Mr Robinson said No.5 is IN the conservation area as a contributory item, it is part of the legislative controls, one cannot overturn that by saying it should not be there. The conservation area is very small only eight houses, it represents the early development of the Beresford Estate, it is not just about the A&C design period it includes Federation. 58 The Noel Bell Ridley Smith assessment described it: "5 Balfour Street is a small single storey Federation cottage. It has retained the chimneys, slate roof with terracotta ridge capping and "rams horn" finials and has been painted". 59 The study ranks it as: "2 (Contributory) Part of the Beresford Estate Federation Arts and Crafts Group". 5 Balfour Road 60 No.5 dates from 1917 so it is in the era of the Federation - A&C houses, but it is in the later style of Federation. It fits in, whereas the proposal does not mainly because of the contemporary flat roofed additions that can be seen plainly from the street and the awkward junction with the new skillion slate roof. On the north side the view is clear due to the driveway of No.3A and the setback of No.3. It will be a jarring element in a streetscape that is currently sympathetic. The existing house does contribute to the conservation area, the proposal by contrast will detract from it. 61 Also the 8 houses form a group, and the strength of that group is important to the character of the conservation area, lose one, even this the smallest one due to unsympathetic additions, and the character of the group and the history of the era it represents is diminished. 62 The evidence brought me to the opinion that the conservation issues are the determinative ones in this appeal. 63 Turning to the Statement of Heritage Significance for the conservation area in the WRDCP it says: The Federation Arts and Crafts Group on Balfour Road represents the early subdivision and development of the Beresford Estate close to New South Head Road in the first decades of the 20th century to a moderate degree... The group demonstrates a variety of characteristic external elements of the Federation Arts and Crafts style of architecture including broad walls of rough cast render with face brick often on sandstone bases, dominant roofs in slate or terracotta tiles with prominent chimneys and decorative timber detailing. They demonstrate the fashionable use of prominent gable features and arched openings and occasional buttressed walls. The gardens generally remain as informal layouts, retaining mature trees and original stone walls with wrought iron details or brick fencing with timber details. Together they form a cohesive aesthetically significant group and are representative of Federation dwellings in Rose Bay. 64 Mr Robinson said that the additions including the new roof at the front, created a grotesque clash of a steep pitched skillion slate roof at the front, with a gap behind it for an upper floor terrace and a wooden privacy screen facing No.3, then behind that the flat roofed long rectangular form of the extensions in painted fibro-cement sheet cladding as high as the ridge of the skillion slate roof. The existing brickwork (currently painted but dilapidated) is to be rendered and painted. Proposal Long Elevation 65 The flat roofed form is contrary to the controls of the RDCP especially cl O4.10.8- to manage change to existing buildings within the area to ensure the heritage character of the area is not altered or compromised and the buildings retain their architectural integrity. 66 O4.10.42- to ensure the significant fabric of contributory buildings is to be retained such as original principal roof forms and chimneys, original details, materials and finishes of the principal form, room layouts of original portions to be retained. 67 O4.10.44- Additions may be located at the rear or in the principal roof form provided no alteration to the principal roof form including dormers is visible from the public domain. 68 O4.10.46- development to be a maximum of 2 storeys with pitched roof forms. The scale and character to be consistent with the group. 69 When asked how extensions of No.5 could be done in accordance with these controls, Mr Robinson said a 2 storey pavilion at the rear of the main roof, or sympathetically dovetailed into it at the rear. He agreed it is not an easy design task. He said the additions would still be seen from the street but they would allow the existing house to be read as the original part and as part of the group in the conservation area. The proposal would not. 70 Mr Robinson said if the existing house were to be taken out of the conservation area, he would not oppose a development that demolished 95% of the existing house (as the proposal does) but not the subject design. He said the proposal would look like a contemporary flat roofed building with a pitched slate roof grafted onto the front to present a street front elevation in another older architectural style and would not be appropriate in the streetscape in the vicinity of the Conservation Area and Contributory items. 71 The latter description is very much to the point of the heritage conservation evidence, and demonstrates the basic non-compliance with the relevant provisions of the WRDCP and the WLEP. In coming to a decision on this appeal I must assume the subject existing house has a contributory role to play in the conservation area. And in fact, it does fit into the streetscape of this small 8 house conservation area. Its roof pitches and materials when seen obliquely down the street are sympathetic to No.3. Its smaller scale and evolved Federation architectural style compared to the 7 other houses acts as a comparison of pre-WW1 and post-WW1 influences on the early development of the Beresford Estate. It is an evolution within the Federation style that is the overall genus of Arts & Crafts, Federation and Californian Bungalow period, and that genus is recognised in the Statement of Significance. 72 The proposal would render all of that unrecognisable in the contributory item at No.5 Balfour Street and thus effect the significance of the conservation area. A better design for extensions to the existing house is required. 73 Therefore the Orders of the court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits A, B, C, D and 5. ___________________ K G Hoffman Commissioner of the Court ljr 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.