Land and Environment Court of New South Wales CITATION : Takchi E v Hornsby Shire Council [2007] NSWLEC 597 APPLICANT: PARTIES : Eddie Takchi RESPONDENT: Hornsby Shire Council FILE NUMBER(S) : 10556 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application - Subdivision :- Heritage significance of the item and curtilage Hornsby Local Environmental Plan 1994, (HLEP) LEGISLATION CITED: State Environmental Planning Policy No 1 - Development Standards, (SEPP1) Sydney Regional Environmental Plan No 20: Hawkesbury/ Nepean Rivers, (SREP20) Environmental Planning and Assessment Act 1979, ss79C and 97 DATES OF HEARING: 10 and 11 September 2007 DATE OF JUDGMENT: 20 September 2007 APPLICANT: Mr E Kondilios, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Maddocks RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 20 September 2007 10556 of 2007 - Eddie Takchi v Hornsby Shire Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse a development application to erect a new 'multi-unit housing' dwelling house and to subdivide into two allotments land at Lot 4, DP 204012, being No 27 Loftus Road, Pennant Hills, NSW. 2 I visited the land in company with the parties on the morning of the first day of proceedings and I heard from local residents. 3 I have concluded that the application should fail as a result of the adverse impact of the proposed new dwelling house on the heritage significance of the item within the conservation area, mainly due to a reduction of its curtilage. The land 4 The land is situated located on the southwestern corner of Loftus Road and Star Crescent, Pennant Hills. 5 The land is roughly rectangular in shape with a northern boundary fronting Star Crescent of 39.625m; an eastern boundary fronting Loftus Road of 21.03m; a southern boundary adjoining No 25 Loftus Road of 45.72m a western boundary adjoining No 1 Star Crescent of 24.27m and an area of 1,069m2. 6 There is a fall of about 2.8m from the northeastern corner (at the intersection of Star Crescent and Loftus Road) down to the southwestern corner at an average grade of 6%. 7 Vehicular access is from Star Crescent. There are about twenty (20) trees growing on the land. The most important of these trees is the mature Hoop Pine, (araucaria) located adjacent to the rear western fence. This tree was probably planted when the dwelling was erected around the 1900s. During the proceedings, evidence was given of a 3.65m diameter brick-lined well some metres deep, probably of the same vintage as the existing dwelling located near the courtyard on the western side of that dwelling. 8 The Loftus Road and Star Crescent streetscapes are characterised by single-storey and two-storey dwelling houses. As noted in the amended Statement of Facts and Contentions, the area is characterised by dwellings standing on lots of between 700m2 to 1200m2 in area. 9 Erected on the land is a single-storey brick and weatherboard residence, with hipped roof and rear skillion, which is listed as a heritage item of local significance. The Statement of Significance contained within the State Heritage Inventory listing for the property states that it is: A good example of a late Victorian period brick cottage in Georgian style. Fine quality original cast iron detail. …[n]eat brick cottage circa 1900. Symmetrical design. Tuck pointed face brick in Flemish bond. Hipped iron roof with hipped bullnosed verandah. Cast iron columns with lacework (and fringes). Double-hung windows either side of door. Stone sills with connecting red-coloured band. Tiles to verandah floor. Relevant planning controls Hornsby Local Environmental Plan 1994, (HLEP) 10 Under the provisions of the HLEP the land is zoned Residential A (Low Density), and the proposal is permissible with consent. Of relevance are: · The aims and objectives are contained under cl 2 of the HLEP. · Clause 7(2) of the HLEP requires the objectives of the zone to be taken into account before development consent is given to the carrying out of a development within the zone. · Clause 8 of the HLEP deals with zoning of the land. · Clause 14 'Density' requires a minimum area per lot of 500m2 excluding access or right of carriageway. · Clause 15 'Floor Space Ratio' permits a maximum floor space ratio of 0.4:1 within the Residential A (Low Density) Zone. · Clause 18 of the HLEP relates to 'Heritage Items and Heritage Conservation Areas'. 11 The dwelling on the land is listed as a heritage item of local significance under Schedule D of the HLEP as 'House'. It is also is located within the Beecroft/ Cheltenham Heritage Conservation Area (HCA) under the provisions of Schedule E of the HLEP. 12 It is noted that there are around 72 items in Schedule D of the HLEP that are described by reference to 'house and grounds', 'house and garden', 'house and outbuildings', 'house and stables', or similar description, indicating that the 'house' is not the only reason for listing. For example at No 41 Loftus Road, the item is described as "House and grounds, including convict brick paths, stone love seat, palm tree, remnant circular drive and beehive well". The subject heritage item is listed as 'House'. State Environmental Planning Policy No 1 - Development Standards, (SEPP1) 13 As proposed Lot B would have an area of 472m2, it would not comply with the minimum 500m2 under cl 14 of the HLEP. Consequently an SEPP1 object to that standard has been lodged with the development application that would allow flexibility in applying the development standard. Sydney Regional Environmental Plan No 20: Hawkesbury/ Nepean Rivers, (SREP20) 14 Under the provisions of the SREP20 water quality of the Hawkesbury/ Nepean Rivers catchment is important. Low Density Multi-Unit Housing Development Control Plan, (MUDCP) 15 Under the provisions of the MUDCP the objectives for 'Design', 'Height', 'Privacy', 'Carparking' and 'Solar Access' are relevant. Water Minimisation & Management Development Control Plan, (WaterDCP) 16 Under the provisions of the WaterDCP a waste management plan is required. Heritage Development Control Plan, (HeritageDCP) 17 Under the provisions of the HeritageDCP the element objectives for 'Design', 'Streetscape', 'Siting' and 'Heritage Conservation Areas' are relevant. 18 Important objectives of the council's HeritageDCP are: · To conserve the heritage significance of the natural and built environment and ensure new development is sympathetic to the identified heritage values. · To encourage an understanding of heritage significance and promote the conservation of heritage within Hornsby. The proposal and its history 19 Development application No 1676/06 was lodged with the respondent council on 26 October 2006 to erect a new 'multi-unit housing' dwelling and to subdivide into two allotments the land. 20 It is proposed to erect a new second dwelling on the land and to retain the existing dwelling. The new second dwelling would comprise: (i) Living and family rooms on the ground floor. (ii) A double garage. (iii) The first floor comprises 3 bedrooms, (amended to two bedrooms during the proceedings) bathroom, walk-in wardrobe and en-suite. 21 The first floor would be recessed back from the external walls of the ground floor of the new dwelling. 22 It is also proposed to subdivide the land into two lots. Proposed Lot A would have an area of 584m2 as a curtilage for the existing heritage-listed dwelling. Proposed Lot B would comprise an area of 472m2 and would be the site of the proposed new dwelling. 23 Vehicular access to both lots would be to and from Star Crescent. The existing kerb crossing would provide access to Lot A and an additional kerb crossing would be provided to proposed Lot B. There is a 1.8m high fence along the northern Star Crescent alignment of the land. This fence would be reduced in length if the present application were erected and an open palisade fence to 1.5m high would be constructed 750mm inside the boundary in front of the new dwelling. 24 The existing dwelling is setback from the Loftus Road alignment around 7m to the eastern wall and 5.4m to the front edge of the 1.6m-wide veranda. The dwelling is setback around 8.2m from the Star Crescent alignment and there is a northern side yard. 25 A number of trees would be removed were the new dwelling erected however the council did not raise issue with this. Notification 26 The development application was advertised for a period of 21 days from 7 November 2006 and four (4) public submissions were received objecting to the proposal. The council's decision 27 The council planning officers reported on the application and recommended its refusal. By notice dated 7 February 2007, the council refused the application (DA 1676/06) for the reasons: 1. The proposal fails to satisfy Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979, as the proposal does not comply with the relevant provisions of the Hornsby Shire Local Environmental Plan 1994 and Heritage Development Control Plan in encouraging the preservation of a heritage item. 2. The proposal does not comply with zone objective (b) of Clause 7 as contained within the Hornsby Shire Local Environmental Plan 1994 as the proposal does not promote a housing type compatible with the heritage character of the area. 3. The proposal fails to comply with Clause 18, 'Heritage' of the Hornsby Shire Local Environmental Plan 1994 as the proposal does not encourage conservation of heritage within the Hornsby area. 4. The proposal fails to comply with the objectives of the Heritage Development Control Plan in that it does not encourage the preservation of the values of the heritage item (house). The scale, height, design and proportions of the proposed second dwelling-house are inconsistent with the heritage-listed building and would visually dominate the property. 5. The proposed dwelling-house on Lot B fails to satisfy the element objective for 'Design' as required under Council's Low Density Multi-Unit Housing Development Control Plan, in that the southern elevation exceeds 10m in length without a physical break. 6. Insufficient separation is provided between the existing and proposed dwelling-houses. The existing dwelling-house on Lot A fails to comply with the element objective and prescriptive measure for 'Setbacks' as required under Council's Low Density Multi-Unit Housing Development Control Plan as the proposed rear setback is less then the minimum requirement of 3 metres. 7. The proposed dwelling-house on Lot B, fails to satisfy the element objective for 'Height' required under Council's Low Density Multi-Unit Development Control Plan, as the proposed building height would impinge on privacy, solar access and vistas of the adjoining properties, in particular, the property located at No 25 Loftus Road. 8. The proposed dwelling-house on Lot B will adversely impact on the solar access to the private open space of the adjoining property located at No 25 Loftus Road. 9. Insufficient on-site car parking has been provided to the existing dwelling house on proposed Lot A as required under the 'Carparking' element of the Low Density Multi-Unit Housing Development Control Plan. 10. The proposal is not considered to be in the interest of the public and is inconsistent with the provisions of Section 79C of the Environmental Planning and Assessment Act 1979. 28 On 15 May 2007, the council considered a Section 82A Review Application for the application and again the council officers recommended refusal for similar reasons. 29 On 4 June 2007 the council's heritage advisory committee when considering the Section 82A review application reiterated its earlier comments in respect to the adverse impact of the then current proposal on the curtilage and setting of the heritage item. The hearing 30 The appeal was filed on 15 June 2007 under s 97 of the Environmental Planning and Assessment Act 1979. 31 At the hearing the Court heard evidence on behalf of the respondent council from: · Mr T S Gibson, resident of No 1 Star Crescent, Pennant Hills; · Mr J Reed resident of No 9 Star Crescent, Pennant Hills; · Mr N Graham, resident of No 25 Loftus Road, Pennant Hills; · Ms J Graham, resident of No 25 Loftus Road, Pennant Hills; · Mr L Hancock, resident of No 23 Loftus Road, Pennant Hills; · Mr J A Moody, consultant town planner; and · Mr D P Logan, heritage consultant. 32 On behalf of the applicant evidence was given by: · Mr I Glendinning, consultant town planner; and · Mr R M Staas, heritage consultant. The issues 33 On 13 August 2007 the council filed an amended statement of issues. Heritage issues: (i) The proposal does not encourage the preservation of a heritage item (s 79C(1) Environmental Planning and Assessment Act 1979). (ii) The proposal does not promote a type of housing that is compatible with the heritage character of the area (zone objective (b) cl 7 HLEP) and nor does the proposal encourage the conservation of heritage within the area (cl 18 HLEP). (iii) The proposal also does not encourage the preservation on the values of a heritage item because the proposed height, scale, design and proportions of the proposed second welling house are inconsistent with the heritage listed building (contra the objectives of the Heritage DCP). Design issues (i) The proposed elevation exceeds 10m in length and contravenes the element objective for 'design' under the Low Density Multi-Unit Housing DCP. (ii) The proposed rear setback is less than the minimum 3m as required by the Low Density Multi-Unit Housing DCP. The effect is that insufficient separation is provided between the existing and proposed dwelling houses. (iii) Non compliance with requirements of Council's Low Density Multi Unit Housing DCP which provides that multi-unit dwellings should generally not exceed 3.6m in height (ie generally not more that single storey). (iv) The adverse visual impact on the proposed new dwelling when viewed from adjoining residences. The combination of the breach of the height requirements referred to in (iii) above and the length of the wall of the proposed second dwelling will result in unreasonable and adverse visual impacts for neighbours. (v) The location of the proposed rear dwelling on proposed lot B adjacent to the private open space and rear year areas of adjoining residences will increase the adverse visual impact of the proposal which will be exacerbated by a combination of the excessive height and excessive breadth of unbroken wall (in excess of 10m) and the location of the proposed dwelling adjacent to the rear yard of the adjoining properties. Impact on neighbours The proposed building height would impede the views, solar access and privacy of the neighbouring properties (especially at 25 Loftus Rd) contra the element objective for 'height' under the Low Density Multi-Unit Housing DCP. Car Parking There is insufficient carparking for the existing dwelling house on proposed Lot A as required by the "carparking" element under the Low Density Multi-Unit Housing DCP. Not in Public Interest The proposal is inconsistent with the provisions of s 79C of the EP&A Act. Objectors' concerns? 34 The principal issue in contention was the heritage significance of the item and its visual setting. Amended plans 35 During the proceedings the applicant, assisted by Mr Staas, amended the plans as now shown in Exhibit O. These amendments resulted in the first floor of the proposed new dwelling house being reduced in area and being largely contained within the attic space of the roof. There would be a projection above the southern roof surface in the form of an 'eye-lid' dormer about 7.2m in length and a gabled roof on the northern roof face around 8m wide. The number of bedrooms was reduced from three to two. 36 The applicant sought to limit overlooking of the Graham's property at No 25 Loftus Road to the south, by proposing to fix the bottom sashes of the double hung windows and for these to be opaque glazed. The applicant pointed to the fact that these windows were to non-habitable rooms such as a bathroom and ensuite and hence privacy would not be so critical an issue. However, the westernmost window was to provide light to an alcove off Bedroom 2, [Note: Plan in Exhibit O]. The evidence and findings 37 The principal contested issue was the heritage significance of the item and its visual setting. Also important was the 'heritage curtilage' of the item that is defined as "…the area of land surrounding an item or area of heritage significance which is essential for retaining and interpreting its heritage significance." In the document entitled 'Heritage Curtilages' in the NSW Heritage Manual, prepared by the NSW Heritage Office and the Department of Urban Affairs and Planning a number of questions are posed to guide consideration of impacts on a heritage item and its curtilage: · Has the significance of the original relationship of the heritage item to its site and locality been conserved? · Has an adequate setting for the heritage item been provided, enabling its heritage significance to be maintained? · Have adequate visual catchments or corridors been provided to the heritage item from major viewing points and from the item to outside elements with which it has important visual or functional relationships? · Are buffer areas required to screen the heritage item from visually unsympathetic development or to provide protection from vibration, traffic noise, pollution or vandalism? Heritage significance of the item and its visual setting 38 Messrs Staas and Logan in a joint statement considered 'The adequacy of the reduced setting for an understanding of the heritage significance of the item'. Mr Logan was opposed to siting a new dwelling in the rear yard of the locally listed heritage item and stated, [Note: Exhibit L, p 2]: …that it is important that heritage items retain an adequate curtilage and visual setting. [I]t is [not] appropriate to subdivide the site of the heritage item given that its new rear boundary would be only approximately 1 metre from the rear of the existing dwelling, thereby reducing its curtilage and removing its rear garden area. The proposed dwelling would replace the existing garden area and open setting around the heritage item with a bulky built form, (since reduced by amendments). This would detract from the historic character and streetscape value of the existing property, contrary to Council's broader heritage objectives. 39 Mr Staas countered this view and stated, [Note: Exhibit L, p 3]: …that the visual presentation to Loftus Road would remain unaltered by the proposed development and that this is identified as the principal area of architectural character as defined in the Council's heritage statements for the place. The item formerly [was] in a wider rural setting [and] now exists on a suburban lot. Its significance is not dependent on this lot size or the later subdivision that it is located in. The limited local heritage values of the place are fairly obvious because of the surrounding development and do not… rely heavily on the current setting to the rear which is visible only as a result of the pattern of the later subdivision. 40 Mr Stass in oral evidence was satisfied that sufficient curtilage would remain if the proposed new dwelling were erected on the new subdivided lot. He indicated that the proposed new dwelling would be setback 2.8m further from the alignment of Star Crescent than the existing building on the land. Scaling off the survey plan and the architectural drawings, the proposed setback of the new dwelling from the Star Crescent alignment would be around 11.0m. This setback, Mr Staas said, would assist in reducing the visual dominance of the proposed new dwelling when viewed from the corner of Star Crescent and Loftus Road. He also pointed to the fact that this reduction of the dominance of the new building was reinforced by the eaves of the proposed new dwelling being around 1m lower than the eaves of the rear skillion roof at the rear of the existing dwelling and would be separated from it by a distance of 4.850m. Mr Staas was content that the existing Hoop Pine and other vegetation would be retained, albeit in a new allotment, to the north and west of the proposed new dwelling and this would assist, he said, in maintaining the sense of a curtilage for the existing dwelling by visually linking this vegetation with the existing heritage listed dwelling. 41 Against this, Mr Logan was concerned that the introduction of a new dwelling between the existing dwelling and the Hoop Pine would downgrade the visual connection between the two and reduce the heritage significance of the item, its setting and its interpretation. 42 Mr Logan agreed with Mr Staas, that the visual presentation of the heritage item to Loftus Road would remain largely unaltered by the proposed development. This they agreed is an important aspect of the existing dwelling. I agree with the heritage experts that the removal of the existing carport structure on the northern façade of the existing dwelling would be a positive outcome. 43 However, I disagree with Mr Staas that the significance of the heritage item does not "…rely heavily on the current setting to the rear which is visible only as a result of the pattern of the later subdivision," and is not "…dependent on this lot size." On the contrary, I give the locally heritage listed item greater significance than does Mr Staas, and I am satisfied that the application should be refused for reason of the reduction in the size of its curtilage and the loss of the rear garden. 44 This garden has the Hoop Pine and the yet to be revealed well and provides necessary open space at the back door of the existing dwelling. If no subdivision were permitted the Hoop Pine, would remain on the same lot as the heritage item and the house and the tree could be maintained to form part of the heritage of the item. Other remnant vegetation, probably part of the original planting on the original 7-Acre lot, and associated with the house, has since been included in nearby suburban lots remote from the item, and have completely lost their significance to the item. 45 I accept the thrust of the evidence of Mr Logan and I am satisfied the proposal to erect a new dwelling and to subdivide the land, would not encourage the preservation of the heritage item's significance or its visual setting. I am satisfied that the existing visual setting and curtilage is appropriately sized and to reduce it further in size by subdivision and the erection of a new dwelling as proposed, would be so detrimental to the heritage significance of the building that it should be refused consent. Since the existing dwelling was erected over 100 years ago the land has been subdivided down to the present size of 1,069m2 to subdivide the land further, would be inappropriate in my opinion. In this regard, the evidence of Mr Staas does not persuade me and I refuse the application for this reason. 46 Answering the questions posed in the 'Heritage Curtilages' in the NSW Heritage Manual, the proposal would: · not conserve the significance of the original relationship of the heritage item to its site and locality; · not provide an adequate setting for the heritage item, and thus its heritage significance would not be maintained; · not provide adequate visual catchments or corridors to the heritage item from Star Crescent and from the item to outside elements with which it has important visual or functional relationships; and · not provide the opportunity for screening the heritage item being the house from visually unsympathetic development. Other matters Design 47 The zoning of the land permits low-density residential development characterised by single-storey and two-storey dwellings on relatively large lots within a landscaped environment. Mr Moody pointed out that consistent with this planning regime, the objective under the Multi-Unit Housing Development Control Plan (MUDCP) is to "…promote a low-density residential environment". 48 Originally, there were some deficiencies of the plans that would have manifested themselves in a bulky and inappropriate development. However, as the hearing progressed these issues were resolved and the first floor was changed from a full floor to an attic design. The issue of the non-compliance with the provisions of the MUDCP was resolved. The proposal now would meet the required floor space ratio, (FSR) of 0.4:1 with a FSR of around 0.3:1. It would also meet the site coverage, landscaping, setback and private open space requirements of the MUDCP. 49 Amendments to the plans before and during the hearing addressed issues including: 1. The separation distance between the existing dwelling on proposed Lot A and the proposed dwelling on proposed Lot B. The separation distance now proposed would be 4.850m compared to the minimum 5m-distance under the 'Setbacks' element of the MUDCP, [Note: Exhibit 5 p 10]. 2. The proposed length of wall of the proposed dwelling on Lot B would now comply with the 10m-length requirement under the 'Design' element under the MUDCP, [Note: Exhibit 5, p 12]. 3. The proposed dwelling on proposed Lot B would now comply with the 3.6m height requirement (that is, generally not more than single-storey) under the 'Height' element of the MUDCP. Mr Moody pointed out that this height requirement is equivalent to the previous height requirement for a detached Dual Occupancy development. The MUDCP does allow two-storey buildings but only where it does not "…adversely impact on the streetscape, privacy, solar access and views enjoyed by adjacent properties". 50 Mr Moody was of the opinion that in respect of the original design: When standing in the rear yard of No 25 Loftus Road, one will see a tall-extended structure in a position, which normally has minor ancillary single storey structures. Whilst the second floor setbacks somewhat reduce the apparent bulk and scale, the proposed dwelling on proposed Lot B will clearly be seen as a 2-storey structure in very close proximity to the rear private open space of No 25 Loftus Road. Placement of a large extended 2-storey structure in a rear yard is contrary to the character of a low-density residential environment and is contrary to Council's Planning Controls. 51 At the conclusion of the proceedings Messrs Moody and Glendinning, consultant town planners, agreed that with the amendments to the plans in Exhibit O that the proposal would be acceptable from a dwelling design viewpoint. The Graham's at No 25 Loftus Road were content that the bulk of the first floor had been reduced by the provision of the eye-lid dormer, and requested that the sill heights to the windows on that side be elevated to 1.5m above finished first floor level or be relocated to the north. Replacing a gabled end wall with a hipped roof reduced the bulk of the proposed first floor of the new dwelling when viewed from No 1 Star Crescent. This was achieved by removing one bedroom from that level thereby reducing the volume on the first floor. SEPP1 objection 52 Mr Moody stated: It should be noted that the area of proposed Lot B is only 472m2, which is 28m2 or 5.6% below the minimum standard 500m2 under Clause 14 of the HLEP. A SEPP No 1 Objection has been lodged. Whilst this deficiency is of concern, I consider that the primary concern relates to the design of the proposed dwelling on proposed Lot B and its consequential impacts on adjoining properties. 53 So if approval were contemplated an SEPP1 objection would need to be upheld to permit the land to be subdivided. Impact on neighbours 54 With the amended design the overlooking of the Graham's rear yard at No 25 Loftus Road, would be largely addressed. Mr Graham said that he would prefer the dormer windows on the first floor to have a sill height of 1.5m rather than as proposed for the bottom half of the windows to be fixed and opaque glazed. 55 With the provision of a hipped roof to the western side of the proposal the overshadowing and overbearing impact on the Gibson's property at No 1 Star Crescent was largely resolved. 56 I would not refuse the amended application for reason of adverse impacts on neighbours. Car parking 57 The amended proposal would provide for two car parking spaces for each dwelling in accordance with the council's requirements. This issue is resolved. Not in public interest 58 Both the neighbours expressed concern for the erection of a new dwelling in the rear part of the land. Putting this concern to one side, with the reduction in the height of the proposal many of the concerns related to the bulk and height of the proposed new dwelling would be resolved. 59 For the above reasons, on balance the appeal is dismissed for reason of the adverse impact on the heritage significance of the existing building and its curtilage. Orders My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. Development application No 1676/06 lodged with the respondent council on 26 October 2006 to erect a new 'multi-unit housing' dwelling house and to subdivide into two allotments, the land, at Lot 4, DP 204012, being No 27 Loftus Road, Pennant Hills, NSW, is refused development consent. 3. The exhibits except for Exhibits A, B, C, D, F, G, O, P, 2 and 8 are returned. S J Watts Commissioner of the Court sw 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.