SOTTRIOU v KU-RING-GAI COUNCIL [2008] NSWLEC 1208

Land and Environment Court of New South Wales

CITATION : SOTTRIOU v KU-RING-GAI COUNCIL [2008] NSWLEC 1208

APPLICANT PETER SOTTRIOU PARTIES : RESPONDENT KU-RING-GAI COUNCIL

FILE NUMBER(S) : 11311 of 2007

CORAM: Murrell C

KEY ISSUES: Development Application :- erect a multi unit development; impact on State Heritage Item; streetscape; setbacks; height; and variation to minimum allotment size for residential flat building.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Ku ring gai Planning Scheme Ordinance

DATES OF HEARING: 4/04/08, 13/04/08

DATE OF JUDGMENT: 7 May 2008

APPLICANT Mr S Flanagan, solicitor SOLICITORS Susan Hill & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: - 10 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

7 May 2008

11311 of 2007 PETER SOTTRIOU v KU-RING-GAI COUNCIL

JUDGMENT

1 The applicant in these proceedings is seeking to erect a multi-unit residential flat building on the property known as 12 Woonona Avenue, Wahroonga. 2 The subject proposal contains: a basement level for parking some five vehicles; and three apartments - one apartment on the ground level, one on the second floor level, and one apartment on the third level contained within part of the roof space. The proposal equates to a three storey residential flat building in terms of council's control. The building is raised some 1.2 metres at the rear although this does not represent or count as a storey as such and is consistent with council's controls. 3 The site is zoned Residential 2D(3) LEP 194, now incorporated into the Ku-ring-gai Planning Scheme Ordinance. 4 Within the area surrounding the subject site the form of development is varied, being residential flat buildings, aged persons housing/ SEPP 5 developments, single storey and two-storey dwelling houses, and heritage items. The subject site at the rear shares a common boundary with a State Heritage item known as 'The Briars'. 5 The site is some 929 square metres and is rectangular in shape with a wide frontage to Woonona Avenue of some 33 metres and a depth of some 28.5 metres. There is a slight fall in the site in two directions, to the rear and to the north. The site currently contains a dwelling house erected in the late 60s of a single storey construction. The proposal is to demolish the dwelling house. The locality as I stated, is one that has a number of different varieties of uses but generally the leafy nature of the area prevails in the streetscape. 6 The Court heard evidence from a number of objectors on site, including the owner of the heritage item at the rear, Mr Fuller. He is of the opinion that the proposed development is intrusive and that it will impact on both the home and the garden of the Briars. The garden is also made available to the public during different seasons of the year. 7 Mr Fuller considers that there has been too much emphasis on the screening of vegetation afforded by his property that adjoins the subject site on the common boundary as well as the landscaping for the proposal to ameliorate the impacts on the Briars. He states that he has a responsibility to maintain and conserve the Briars as a state heritage item, and he is concerned that the proposed development will be a substantial nail in the coffin of the Briars as an important heritage item. 8 As I stated, there were a number of people that availed themselves of the opportunity to give evidence on site. The Court carried out an inspection of the area and the applicant provided height poles during the course of the day to allow a further clarification of the height of the proposed residential flat building, in particular its relationship to the Briars. 9 By way of background, the subject site was subdivided from the Briars in the late 1960s as originally the frontage of the subject site provided wide access and a garden to Woonona Avenue. The Briars is a single storey dwelling with large proportions set in a large formal garden. The subdivision allowed a single storey dwelling with a wide frontage to Woonona Avenue. On the northern side of the subject site, vehicle and pedestrian access is provided to the heritage item by a driveway. The driveway then sweeps behind the rear of the subject site interposed with a garden bed on the boundary. Behind the subject site is the dwelling of the Briars with its main entry doors and verandah and portico. The driveway continues around the dwelling and the garages are separately located towards the rear and southern side of the heritage dwelling. 10 The Court heard from a number of experts. Mr S Layman, consultant town planner, provided evidence on behalf of the council and Mr Zylbr provided town planning evidence for the applicant. They also prepared joint reports. Mr Staas, a heritage architect for the applicant and Mr Robertson, a consultant heritage expert, provided evidence for the respondent council. 11 The council contends that the proposed development would have an unacceptable impact on the heritage item known as 'The Briars' and the proposed development should not be approved. The council also contends that the SEPP 1 objection to vary the 1200 square metre minimum site area in the Ku-ring-gai planning scheme should not be upheld. 12 The council also contends that the impact on the Turpentine tree would be unacceptable. At the end of the day this issue was addressed by setbacks and construction methods. 13 As this is a verbal judgment I will say at this point I consider that the proposed development is not satisfactory in terms of its impact on the heritage item, 'The Briars'. I now provide my assessment of the evidence and reasons as to why the application does not warrant approval. 14 It was submitted on behalf of the applicant that the proposed development under council's controls, in terms of the numerics, is one that gets a tick. This however in my assessment is a rather simplistic approach having regard to the need to consider the impact of the proposed development on the heritage item. The State Heritage item requires heightened sensitivity in an assessment of this development application on the subject site. 15 In summary, the planning regime in which the Court must assess the development application is the Ku-ring-gai Planning Scheme Ordinance as amended to March 2007, incorporating LEP 194. In terms of cl 25D, "if the application is for residential flat building in 2D(3), a statement describing the extent to which carrying out the proposed development would affect the heritage significance of any heritage item in the vicinity of the subject site" The objectives of the zone must also be considered "to provide rear setbacks that ensure rear gardens are adjacent to rear gardens of other properties and that sufficient ground area is available for tall tree planting consistent with the objectives of this part". There is also a provision to ensure sunlight access to neighbours and to provide sunlight access to occupants of the new building. 16 With respect to whether a SEPP 1 is required or not, I note that the size of the site is considerably smaller than the relevant provision of the EPI. The site has been zoned 2D(3) and as such there is an expectation for redevelopment. The expectation of redevelopment however must be assessed in its proper context, and not just in terms of numeric compliance. The development must be assessed in its local context, in its relationship to adjoining buildings and in particular, in this instance, a State Heritage item at the rear. 17 Mr Staas is of the opinion that the proposal is satisfactory. He considers that the subdivision that occurred in the late 1960's altered the curtilage of the Briars in terms of its entry. He is of the opinion that with the vegetation screening that the proposal is satisfactory. 18 Mr Robertson on the other hand considers that the existing vegetation should not be equated to the proposed built form. He considers that the length, height and the roof, are such that the proposed development is not satisfactory in terms of its relationship on the Briars. In his opinion, it has a significant adverse effect on the Briars. 19 The experts provided a joint statement following the erection of the height poles. Mr Staas said this did not change his assessment that it would be satisfactory. He did offer, however, that there could be a redesign of the roof to provide for a flatter element, which would reduce the height by some one metre. 20 Mr Robertson considered the perception of the new building looming along the eastern boundary of the Briars would reduce the heritage context of the item and that views from the portico, drive and verandah would reduce the amount of sky visible from those locations as well as provide a man-made rather than a current predominantly natural context for the Briars. This would impinge on the owners' and visitors' delight in the experience of the heritage house and its garden setting. 21 Mr Staas on the other hand, considers that the principal perception of people visiting the Briars would be largely related to their view of the verandah and portico away from the subject site and that the limited visibility of the proposed development through dense planting would have limited and acceptable impacts on the overall setting of the item. 22 In summary, Mr Robertson is of the opinion that the height poles representing the walls and ridges of the proposal, provide a dramatic confirmation of his previously expressed opinion that the proposed development will be visually dominant when viewed from the front drive, front porch, front verandah and front bedroom of the Briars and that the existing proposed landscaping would be inadequate to screen the overwhelming scale of the development on the Briars. He continues to consider the development unreasonable and unacceptable and the setting and cultural significance of the state heritage item, the Briars, should be retained. 23 Mr Staas, on the other hand, is of the opinion he's carefully considered the matter both in the statement of heritage impact and the joint statement, he considers it to be reasonable and acceptable that the development should have no visibility from the heritage item, only that it should be reasonably limited in its visual impact on the setting and have no significant adverse amenity impact on the item. 24 I am of the opinion that this still would not provide for a satisfactory built form adjacent to the State heritage item. 25 It is noted that the proposed development has a 6 metre setback to the face of the wall from the common boundary with the Briars and there is some 700 millimetres, or thereabouts, of an eave overhang. In terms of The Briars to the common boundary, this is some 8 metres to the portico and 10 metres to the face of the wall. 26 It is also simplistic in my assessment, having regard to the design of the heritage item, to take it to the face of the wall. One must look at the heritage item in its context and the proportions that the dwelling, the built form itself, as well as the curtilage and garden provide to the enjoyment of the Briars. 27 The front of the Briars with the portico is the formal access to the Briars, and this is an important element to be respected. The bulk, height and length of the proposed building would be overwhelming and inappropriate even though it complies in terms of the council's numeric controls with the minimum setback, with some 16 metres wall-to-wall. 28 When the rear setback provision was written, it may not have been contemplated that the only access to a heritage item would be via a battleaxe handle. In hindsight and with the benefit of the importance of retaining curtilages to heritage buildings, the subdivision in the late 60s would not be approved today. Nonetheless many years after the subdivision and the erection of the existing single story dwelling "the Briars' was identified as of State significance. Whilst it may be preferable for the former curtilage to be reinstated, at the same time it still can be appreciated as a heritage item with its current garden setting and relationship to adjoining properties and developments. 29 The heritage value may have been diminished by the subdivision, however, this would not justify approval of the proposed development of the height and length of wall and the roof form as shown in the plans before the Court or with a reduction in height of one metre. Whilst the wall of the rear of the proposed building is articulated, the roof form is a solid form and there is little relief of the bulk in this regard. 30 While vegetation can provide for a filtering of built forms there is clearly a distinct difference between the impacts from the height of vegetation and the height of a solid built form. Furthermore, the vegetation in particular on an adjoining property, should not be relied upon to ameliorate adverse impacts. In my opinion Mr Staas places an over- reliance and dependence upon the vegetation to ameliorate the proposal. The vegetation will come and go from time to time whereas the Briars should endure over time. The longevity of the built form, whether it be the proposed development or the Briars, will outlive the vegetation there today and/or proposed. 31 The presentation of the Briars in terms of the sense of arrival when one drives down the driveway and approaches the verandah is important, and I do not agree with Mr Staas when he says that one would not turn around and look back up. Even if one does not just stand and enjoy the ambience of the heritage building and its curtilage garden setting on arrival, one is attracted to linger and appreciate the heritage significance and to understand the relationship of the dwelling to the garden from the front veranda on leaving. The front entry and verandah are clearly important elements for the heritage item. 32 Also in terms of the northern yard for the Briars as a place of entertaining or simply as a place for the garden to be enjoyed with the northerly aspect, the proposed development in my assessment will also be unacceptable and impact upon the enjoyment of parts of that space. 33 The proposed development is some 4 metres higher than the Briars. With the ridge of the proposal, it is a height of 11 metres. The Briars is a single storey, well proportioned, rather grand home, and it should be respected as such. The fact that the site is zoned for redevelopment, does not mean it is an island without regard to its context, in particular, the significant State heritage item. On behalf of the applicant, Mr Staas informed the Court that the roof could be lowered by about one metre. However, in my assessment under cl 61 of the KPSO this reduction would not make the proposal acceptable and would still result in an unacceptable effect on the heritage item and its setting. 34 The proposal would diminish the appreciation and enjoyment of the heritage item. It is noted that the gardens of the item are made available for inspection from time to time. Furthermore, the responsibility or onus of maintaining and conserving heritage items should be respected in terms of the contribution to the community those owners of heritage items must make. 35 The rezoning has led to expectations that there would be increased development potential for the subject site. However the built form shown in the plans is not satisfactory and is unacceptable in terms of its length, height and setback, and the long expanse of the rear wall to the Briars. 36 The provision of three storeys maximum applies to sites up to 1800 square metres. The subject site is 930 square metres with the constraint of a reduced depth from the street and a State Heritage item on the adjacent land at the rear. The site configuration provides for less opportunity to provide setbacks to position a three storey built form to ameliorate its height and mass on the adjoining heritage item. Consideration must also be given to the zone interface and the reduced depth of the site provides a constraint, in particular in the vicinity of a heritage item. 37 The Ku-ring-gai Planning Scheme Ordinance provides a minimum site area of 1200 square metres as contained in 25I(3) and subcl 4 provides for multi-unit housing may be carried out within Zone 2D(3) on a site that has an area less than 1200 square metres, if the proposed development complies with all the other requirements of this ordinance which includes the three storey maximum and certain landscaping provisions. It also allows for, under subclause 9, the 1.2 metre above ground not to be counted as a storey and as such, and as indicated earlier on a tick-and-flick assessment, the proposed development is one that is compliant, apart from the 1200 square metre site area. But clearly s 79C of the Act requires a merits assessment including under subclause (1) (c), "the suitability of the site for the development". 38 The Ku-ring-gai Planning Scheme Ordinance contains provisions where development is proposed in the vicinity of a heritage item and in my assessment the heritage impacts are fatal to the application. Clause 61(e) states "the council should not grant consent unless it has made an assessment of the effect of the carrying out of the development on the item and its setting". And in this regard the proposed development is not satisfactory because it will overwhelm and impose on the heritage significance of The Briars. 39 In my overall merits assessment under s79C(1)(c) the site is not suitable for the proposed development and in my assessment under clause 61(e) of the KPSO the proposed development would have significant adverse effects on the item and its setting. 40 In my assessment, having carefully considered all the evidence to the Court including the site inspection, I am of the opinion that the proposed development would be overwhelming for the heritage item, given the setbacks, given the height, and given the roof form of the proposal. The application fails because of the significant adverse impacts on the heritage item, as such it follows that the appeal should be dismissed. 41 In the circumstances of this case the application fails on heritage grounds, and therefore it is not necessary to for me to consider whether the SEPP 1 objection should be allowed or not. 42 The other relevant provisions in the council's planning regime is the Development Control Plan for Multi-unit Housing, Development Control Plan No. 55. The numeric provisions and guidelines within this DCP are generally complied with. However this site, the sensitivity of this site, requires a more sophisticated consideration and assessment and clearly in terms of section 79C, the site is not suitable for the development as proposed in the plans before the Court. 43 Accordingly on the basis of my assessment above, the proposed development should be refused and the formal orders of the Court are: 1. The Appeal in respect of the property known as 12 Woonona Avenue, Wahroonga is dismissed, 2. The development application submitted to Ku-ring-gai Council and as amended, is determined by the refusal of consent, and 3. The exhibits are returned to the parties.