Land and Environment Court of New South Wales CITATION : Drivas v Canada Bay Council [2008] NSWLEC 1437 APPLICANT Dimitri Drivas PARTIES : RESPONDENT Canada Bay Council FILE NUMBER(S) : 10160 of 2008 CORAM: Murrell C KEY ISSUES: Development Application :- for demolition and erection of new dwelling, contribution of existing house to conservation area, impact of proposed dwelling on adjoining properties and conservation area. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Drummoyne Local Environmental Plan 1986 Drummoyne Development Control Plan 2004 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Helou v Strathfield Municipal Council [2006] NSWLEC 66 DATES OF HEARING: 06/05/2008, 21/05/2008, 1/07/2008 and 3/07/2008 DATE OF JUDGMENT: 10 November 2008 APPLICANT Mr R. Graham, solicitor of HWL Ebsworth Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor and Mr N. Howie, solicitor of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 10 November 2008 10160 of 2008 Dimitri Drivas v Canada Bay Council JUDGMENT 1 The applicant in these proceedings is seeking to demolish the existing dwelling house on the land known as 1 Arcadia Avenue, Drummoyne and erect a two storey dwelling house above partly excavated garages with access from the side street known as Thornley Street. The streetscape elevations are shown in figures 2 and 3. 2 These proceedings commenced as a section 34 Conciliation Conference and as no agreement could be reached between the parties they consented to the Court adjudicating the matter under section 34(4) of the Land and Environment Court Act. 3 The subject corner site is located on the western side of Arcadia Avenue with a frontage of 11.8 metres and a depth of 34 metres to Thornley Street. The area of the site is some 400 square metres and there is a fall in the land from west to east of about 5 metres. 4 On the opposite side of Arcadia Avenue there is a large foreshore park known as Salton Reserve. This falls significantly from Arcadia Avenue to the Parramatta River and the site has an outlook towards the Sydney CBD. Refer to figure 1. 5 To the north of the subject site there are single detached dwelling houses of one and two storeys on sites of about the same size. The dwelling houses to the west along Thornley Street are on smaller lots created in the original subdivision with many semi-detached dwellings. Contentions The respondent provided an amended Statement of Contentions with particulars as shown in the Appendix. In summary the Council contends that firstly the existing dwelling on the site, in a conservation area, should not be demolished and secondly even if approval is granted for demolition the proposed new dwelling house should not be approved. Statutory Planning Regime 6 The development application was submitted prior to the gazettal of the City of Canada Bay Local Environmental Plan 2008. This LEP contains a savings provision and the application is to be determined as if this plan had been exhibited but not made. 7 Under the 2008 LEP the site is zoned medium density residential, zone R(3). The objectives of this zone include: + to provide for the housing needs of the community with a medium density residential environment + to provide a variety of housing types with a medium density residential environment. 8 Development that is permitted with consent includes: dwelling houses; boarding houses; dual occupancies; multi unit housing and residential flat buildings. 9 Clause 4.4 contains the floor space ratio provisions and the objectives are: a. to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality. b. to minimise the adverse impact of development on heritage conservation areas and heritage items; c. to reduce the visual impact of development when viewed from the Parramatta River as well as other public places such as parks. 10 The maximum floor space ratio that is shown in the relevant map is 0.55:1 11 The Canada Development Control Plan 2008 was effective 7 March 2008. Part 4 of this DCP relates to heritage and for the demolition of a building within a conservation area, a statement of heritage impact is required. It is noted in the LEP that the full demolition of heritage items is generally not permissible and partial demolition is possible subject to the merits of the proposal. 12 Part 4.4 refers to development in conservation areas and the DCP states: For development within a conservation area, it is important to appreciate the character of that area when designing additions, alterations or infill development. ... If a property is considered to be a contributory item to the conservation area or whether it is considered to be neutral or infill development and does not contribute. Contributory: built during a period directly relating to the significance of the conservation area... is substantially in tact. Alterations are reversible. 13 In the DCP the description of setting is the relationship to the space and details around buildings in the conservation area and the objectives include: + to provide an appropriate visual setting for heritage conservation areas, including landscaping, fencing and car parking. + to maintain and enhance the existing character of the streetscape of the heritage conservation area + to ensure that new development respects the established patterns in the streetscape and the heritage conservation area, including setbacks, siting, landscaped settings, car parking and fencing. 14 The controls include: + The side and front setbacks of new development in a conservation area that should be typical of the spacing of existing contributory items within the vicinity... such that the rhythm of buildings in the streetscape is retained. + no new restructures should be built forward of the established street building line. + The established landscaped character of the locality including the height of canopy and density of boundary landscape plantings should be retained in any new development. 15 On the issue of scale the DCP states: that it is important that new development respects the scale of the existing buildings and or landscape elements. The objectives include: To ensure that new development adjacent to or within the heritage conservation area is of a scale consistent with the existing development in the vicinity of the site. 16 The controls include: + The scale of new development adjacent to or within a conservation area should relate to the scale of the adjacent or contributory items + Development of a larger scale is allowable only if it can be demonstrated that the new development will not adversely impact publicly available views of the conservation area. 4.4.3 Form The form of a building is its overall shape and volume and the arrangement of its parts. The rooflines of buildings, and elements such as chimneys, parapet walls, verandahs etc can contribute greatly to the character of an area. Objectives 01 To ensure that new development in a conservation area relates positively to the dominant forms of existing contributory buildings in the conservation area. 02 To ensure that buildings that contribute to the character of a conservation area retain their importance in the streetscape and/or townscape. Controls C1 The prominence of existing building forms that contribute to the character of a conservation area should be retained. C2 The roof forms of new development in a conservation area are to complement the original roof forms of existing nearby buildings that contribute to the conservation area. C3 Chimneys and roof features such as ventilation gablets should not be removed from contributory buildings in a conservation area. C4 Dormer windows should generally be confined to rear or side roof slopes to minimize visibility in the streetscape. C5 Additions and alterations to existing buildings that contribute to the character of a- conservation area should not detract from the original form of the existing building as viewed from the public realm. C6 The treatment of the street façade of new development in a conservation area should relate to existing nearby buildings that contribute to the conservation area. This should include consideration of the massing of the building, proportions of verandahs and height. C7 Verandahs on the front and sides of buildings within a conservation area should not be infilled. 4.4.4 Siting Siting relates to the position of the building on the site and includes the orientation of a building in relation to the street as well as the setbacks of the building from the boundaries. Most buildings in a conservation area are oriented to the street frontage. The regular orientation of buildings contributes to the pattern and rhythm of the streetscape. Setbacks define the overall footprint of a building and the outer extremities of that building in relation to the front, side and rear boundaries. In conservation areas, setbacks are of greater importance in establishing the continuity of the streetscape. Side setbacks are also of importance in providing separation between buildings and establishing a rhythm in the streetscape. Objectives 01 To integrate new development in conservation areas into the established pattern of the streetscape. Controls C1 The front setback of new development (including alterations and additions) in conservation areas should match that of adjacent contributory development. Where adjacent developments have different setbacks, new development should align with the greater setback. C2 Side setbacks of new development (including alterations and additions) in conservation areas should match the pattern of adjacent and/or nearby contributory development. This will often include a greater setback on one side of the development to provide vehicular access at the side of a property. C3 The orientation of new development should follow the established pattern of development in the conservation area. C4 Where trees are important to a conservation area, new buildings should be sited away from the drip line of the trees. 4.4.5 Materials and Colours The quality of many of the conservation areas in the Canada Bay Local Government Area is reinforced by the use of a cohesive palette of materials and colours. Use of sympathetic materials and colours can help new development to blend into existing streetscapes. Development that includes changing roof materials, reskinning, rendering or painting of face brickwork can degrade the character of a conservation area. New development should take into consideration the dominant original materials of contributory development in the conservation area. Where there are contributory buildings of differing materials in close proximity to the proposed development, the building that reflects the dominant period of development in the conservation area should be given greater consideration when selecting materials. Objectives 01 To encourage external materials on new development that is consistent with the existing contributory building stock in a conservation area. Controls C1 Original materials of contributory buildings in conservation areas should not be replaced with different materials or with materials of different colours. C2 Non-original materials of existing contributory buildings in conservation areas that are being replaced shall, if possible, be replaced with material that matches the original material as closely as possible. C3 Painting, rendering or bagging of face brickwork and sandstone is not permitted. C4 The texture of original rendered finishes should not be changed. C5 Materials for new development in conservation areas should not contrast with the original materials of the dominant contributory buildings in the conservation area. C6 Colour schemes for existing and new development in conservation areas should have a hue and tonal relationship with traditional colour schemes for the dominant style of development found in the conservation area C7 The use of fluorescent paint and primary colours on buildings in conservation areas is not permitted. C8 The use of modern finishes including stencilled concrete for driveways in conservation areas is not permitted. 4.4.6 Doors and Windows The spacing, proportions and detailing of doors and windows of buildings in conservation areas usually contributes to the quality of the streetscape. Altering windows and doors or adding new openings can dramatically affect the character of a building and gradually erode the character of a conservation area. Objectives 01 To retain original door and window details of contributory buildings in conservation areas. 02 To ensure that new development in a conservation area has fenestration patterns and proportions consistent with original development in the conservation area. Controls C1 Extensive areas of glazing are not permitted for doors and windows visible from the public realm on buildings within a conservation area. C2 Original door and window openings visible from the public realm on contributory buildings in a conservation area should not be widened. C3 Original door and window joinery visible from the public realm on contributory buildings in a conservation area should be conserved. C4 New door and window openings to contributory buildings in a conservation area that are visible from the public realm should be of proportions and details that relate to existing door and window openings. C5 Where non-original joinery to doors and windows of buildings in a conservation area that are visible from the public realm is being replaced, the details of the new joinery should be based on the probable original joinery to those doors and windows. C6 Skylights should be located on roof slopes where they will not be visible in the public realm. 4.4.7 Carparking Garages and carports can have the greatest detrimental impact on the aesthetic qualities of conservation areas. Garages and carports in front of the building line obscure views of the contributory buildings and break the rhythm and pattern of the streetscape. The proportions of garage doors do not relate to the smaller and more vertical proportions of windows and doors that are usually found on contributory buildings within conservation areas. Objectives 01 To ensure that, where possible, garages and carports are designed to minimise the visual impact on the streetscape of conservation areas. Controls C1 Garages and carports must be located as far behind the front building alignment as possible. C2 Garages should not be incorporated into the front facade of a building in a conservation area. C3 Garages in a conservation area will not be allowed in front of the front building alignment unless they can be built into an existing retaining wall on the street boundary. Gardens are not to be built up to allow the construction of garages behind a retaining wall. C4 Carports will only be allowed in front of the front building alignment where there is no possibility for side or rear access for car parking. Any such carports shall be limited to a single carport. C5 Refer to the Controls for Garages and Carports in the Residential section of this Development Control Plan for general provisions regarding garages and carports. 4.4.8 Fencing Fencing, particularly fencing facing the street, is of particular importance in conservation areas. Consistent and uniform fencing can contribute significantly to the streetscape and character of a conservation area. Fencing should complement the style and scale of the house. Inappropriate fencing can detract from the streetscape by interrupting the pattern of development and by obscuring views. Objectives 01 To conserve gates and fences that are contemporary with contributory buildings in a conservation area. 02 To ensure new fences and gates are consistent with the character of the conservation area and in particular with contributory housing in a conservation area. 03 To ensure that the quality of the streetscape or townscape in a conservation area is not diminished by inappropriate fencing Controls C1 Fencing and gates that are contemporary with a contributory building within a conservation area should not be demolished. C2 New fencing and gates to contributory housing in a conservation area should be designed to complement the style of the house. C3 New fencing and gates to infill development in a conservation area should be in keeping with the dominant character of the conservation area. C4 Unless documentary or physical evidence is provided to establish a greater height, fencing constructed of solid material such as masonry forward of the building line should not be greater than 900mm in height above the adjacent public footpath level. In all cases, the height of fencing should relate to the style of the house and width of the allotment. C5 Original face brick or sandstone fencing in a conservation area should not be painted. C6 Refer to the Controls for Fencing in the Residential section of this Development Control Plan for general provisions regarding fencing. 4.4.9 Landscape Elements including Paving and Driveways Landscape elements are of great importance in contributing to the aesthetic quality of conservation areas. The design of front gardens provides a setting for the house and reinforces the character of the place. In many conservation areas, street plantings are an integral part of the original design of the area. Objectives 01 To retain important landscape elements that contribute to the significance of conservation areas. 02 To reinforce the qualities of the conservation area through appropriate landscaping Controls C1 Street trees in conservation areas should not be removed to allow for new development C2 Existing driveways and footpath crossings that relate to original development in a conservation area should not be relocated. C3 Double driveways and footpath crossings will not be permitted in conservation areas. 4.4.10 Outbuildings Outbuildings such as garden sheds, outhouses, gazebos, pool pavilions can easily detract from the quality of the streetscape. The location and setting of these must be carefully considered so that they have minimal impact on the streetscape. Objectives 01 To minimise visual intrusion on the streetscape due to outbuildings. Controls C1 Outbuildings should be located in the rear yard of properties within a conservation area. C2 Outbuildings should be single storey and designed so that they have negligible if any impact on the streetscape. 17 The height control under the Canada Bay LEP 2008 is 8.5 metres. Clause 4.3 contains a number of objectives for height including: o To ensure the buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality. o To minimise the adverse impact of development on heritage conservation areas and heritage items. o To reduce the visual impact when viewed from the Parramatta River. 18 At the time the application was submitted to council the Drummoyne LEP 1986 was effective having regard to the savings provision. The aims of the Drummoyne LEP in relation to conservation areas include: o To ensure that new development in conservation areas is designed to take account of the scale and character of surrounding development. o To control the demolition of heritage items and buildings in conservation areas. 19 Clause 9(3) of the Drummoyne LEP requires consent only where the development is consistent with the objectives of the zone and for the residential (b) zone the objective is: To provide a predominately residential zone which also permits a limited range of small scale professional and community uses to serve the local population. 20 For development in conservation areas clause 22(A) requires consideration of the impact of the proposed development on the conservation area and an assessment of: a. The pitch and form of the roof, b. The style size proportion and position of the openings for windows and doors, c. Whether the colour, texture, style, size and type of finish of the material to be used on the exterior of the building are compatible with those of the materials used on the exterior of the building are compatible with those of the materials used in existing buildings within the conservation area. 21 The Drummoyne Comprehensive Development Control Plan 2004 contains provisions for conservation areas and the subject site is within the conservation area known as Renwick Day, Alexandra and Thornley Streets, Drummoyne (area 1880 onwards). HISTORY AND CHARACTER This area contains some of the earliest surviving buildings in Drummoyne with an interesting collection of building from the late Victorian period including a number of stone houses in Renwick Street. The area is also of historical interest with the every high retention rate of heritage significance in Renwick Street due to its long term road widening affectation which effectively prevented any development for over 20 years. This has resulted in this group of properties surviving as the most intact streetscape in the Municipality of early and modest housing. Renwick Street was developed early in the development of Drummoyne along with other streets close to Victoria Road where the evidence of early development has been almost obliterated. The scale of building is modest with a large number of simple timber cottages, stone cottages and generally unpretentious buildings. In contrast the adjoining streets released for development at a later period are more typical of the strong Federation character of Drummoyne. This is particularly seen in Alexandra Street and Day Street. The area falls into three distinct characters: * Renwick Street with its late Victorian through to inter-war character * Alexandra, Albert and Day Streets which have predominantly Federation character and * Thornley Street and Park Avenue which have a mix of Edwardian, Federation and several late Victorian buildings. SIGNIFICANCE This area is of high heritage significance for the very intact and complete streetscape of Renwick Street and the fine surviving precincts in the surrounding streets. The area contains some of the earliest surviving development of the Drummoyne area and contains a range of building types and styles that clearly demonstrates the particular development of East Drummoyne in contrast to later developments across the rest of the peninsular. FUTURE CHARACTER The future character is principally to retain the strong overall heritage urban character of the streets with their mix of one and two storey houses on lots of mixed size. Existing building stock is largely from Victorian and Edwardian to Interwar and these characters should be retained. Buildings built prior to the second world war should not be demolished and new buildings should retain the scale and overall character of the immediate area in bulk, form, use of materials. Additions and new buildings can be in a range of forms including good contemporary design with the emphasis on `fit' onto the setting. Garages and carports should not be added in front of the building line. 22 This DCP also contains provisions for garages and carports and the performance criteria include: o garages and carports should generally be located to the rear or further back from the street frontage where rear or side access is available. o carports forward of the building line may be permitted if no side or rear access is available. 23 The table in the Drummoyne DCP that contains an overview of the primary planning controls for dwelling houses in Drummoyne has a requirement that on a 450 square metre land size, an FSR 0.5:1 in 2(a) zones only, a site coverage of 65%, minimum setbacks for the front 4.5 or in line with the adjoining development and the rear minimum setback of 6 metres and side setbacks of 900 millimetres and 1.5 metres for two storey development. The maximum height is two storeys. Evidence and Submissions 24 The Court met on site on the first morning and had a further site inspection on the day of the hearing. The Court heard from a number of resident objectors to the proposed development. Ms Clarke-Nash represented Mrs Winn of No. 1 Thornley and she expressed concern about the character of the area and the important heritage and streetscape that would be adversely impacted by the proposed development. Concerns were also expressed about the traffic and the access for the new dwelling from Thornley rather than Arcadia. The view was expressed that the existing dwelling should be retained with the addition of a second storey. Concern about view loss from the property of Ms Chapman at No. 9 Thornley was also expressed. 25 Mr H. Gardener and his son at No. 3 Arcadia express concern about traffic and the blind corner that would create conflicts. Mr Gardener is also concerned about the privacy impact of the proposal on his front and rear yard and that the building is too big for the land. 26 Ms Mary Capitan of No. 18 Thornley is concerned that the proposed development would set an undesirable precedent and that the history and heritage of the area should be respected. 27 Ms A. Free of No. 7 Arcadia, is of the opinion that the proposal does not respect the general principle of heritage conservation of whole streets and the proposal would undermine the conservation value of the area. 28 Mr J. Quinn of No. 7 Arcadia endorsed the concerns of the above residents. 29 Ms B. Ruzsinski of No. 2 Thornley, the property to the west of the subject site expressed concern about the proposed swimming pool and the impacts on her residential amenity. 30 On behalf of the applicant evidence was given to the Court by Mr Robert Staas, architect and heritage consultant and Mr David Furlong, consultant town planner. For the respondent evidence was given to the Court by Ms Pamela Hubert, heritage advisor and Mr Samuel Lettice, town planning officer. 31 On the issue of the demolition of the existing house Ms Hubert considers the subject dwelling to be one of a small group of four Edwardian houses of similar age, scale, materials, details and design style from No. 1 to 7 Arcadia Avenue and that it is also similar to many other houses in the conservation area. Mr Staas considers that while the house is one of a small group of four Edwardian houses it is quite different from the established character of many of the other houses within the immediate facility in the conservation area and is not of itself of any identified heritage significance. In his opinion all of the buildings in the group in Arcadia Avenue have been modified to varying degrees and they do not form a significant or notable group that is identified by the council. 32 Ms Hubert considers the case of Helou v Strathfield Municipal Council [2006] NSWLEC 66 provides an appropriate definition of a 'contributory item' and says that the planning principle establishes questions that should be addressed in assessing whether demolition of a contributory item should be permitted. On the other hand Mr Staas considers there is no requirement for an assessment under the Drummoyne LEP or requirement on the cost of repairs. 33 Mr Staas considers that while the applicant has prepared an alternative plan showing alterations and additions of the existing building can be achieved there is no requirement under the LEP, whereas Ms Hubert considers this to be a relevant consideration established in the planning principle of Helou v Strathfield. 34 Mr Staas considers the issue of the demolition is a matter of merit consideration and the other heritage issues raised do not arise from the LEP or the relevant planning framework. He also considers that the continued zoning of the land for re-development of a higher density than the existing development combined with the limited value of the house in relation to any cohesive character, area or streetscape context and the limited potential for additions and alterations to the existing fabric mitigate against the retention of the structure in its current form. On the question of the proposed new dwelling the heritage consultants also disagree, that is the degree to which the proposed development is compatible in terms of scale and character of the surrounding development of the impact it would have on the conservation area from the loss of significance of through inappropriate change. 35 On the contention that the new dwelling house does not comply with the objectives and the performance criteria in the Drummoyne Area Comprehensive DCP, Mr Staas considers that the revised application has substantially met all of the relevant matters raised by the council in their original criticisms and that revised is acceptable in the context. 36 Ms Hubert considers that the new dwelling is excessive in height, bulk and scale in relation to the adjacent dwellings at No. 3 to 7 Arcadia Avenue and the semi-detached dwellings at No. 2 to 4 Thornley Street. Mr Staas considers the amended plans have made the dwelling compatible with other buildings in the near vicinity and will not result in any detrimental impact. He considers that this has been achieve by design changes in particular to the roof and setbacks and the revised design is not excessive. 37 On the issue of setbacks Ms Hubert states that the front setback of the terrace over the proposed garage is less than the existing front setback as is the bay window. Mr Staas considers the setbacks proposed provide an acceptable transition to the steeping nature of the houses in Arcadia Avene and that the front terrace will have no significant adverse impact on the character of the area or the amenity of the adjoining house which also has a projecting garage and deck into the front setback area. In his opinion the streetscape is characterised by variety rather than uniformity and in this context the proposal is acceptable. 38 Ms Hubert considers that the terrace over the proposed garage is unacceptable whereas Mr Staas considers this is not a valid point in the amended plan where the existing front garden is largely retained at the current levels and is sympathetic to the form of the presentation of the adjoining site to the street. 39 Ms Hubert considers that the entrance to the dwelling from Thornley Street is unacceptable as the other dwellings have entrances facing Arcadia. Mr Staas considers that the inconsistency with other houses does not preclude a side entrance and that there are many late Victorian developments which have projecting side entrances similar to the one proposed. 40 On the roof pitch and form Ms Hubert says that the revised design has a pitch of some 26o whereas other dwellings in Arcadia Avenue are about 34o and she considers this to be unacceptable. Mr Staas considers that the roof pitch could be changed to comply the heritage wishes of the council but would result in a more visually dominate. In his opinion the pitch adopted is within an acceptable range of pitches represented throughout the surrounding area and is not discordant with the adjoining development character. He referred to the alternative sketch provided for a second storey for the existing dwelling but would result in an enlarged building form with a prominent roof. 41 On the question of the materials for the new dwelling Ms Hubert considers the sandstone for the subfloor is acceptable and appropriate and the use of render for the main walls reinforces a material that has been introduced to the adjacent dwelling at No. 3 but would not be considered appropriate for new development within the Edwardian streetscape. Mr Staas considers that the materials employed are represented throughout the conservation area and are entirely acceptable in the immediate context being recessive and simple in their visual presentation. The revised proposal adopts a combination of painted imitation ashlar render, sandstone cutting, timber joinery, terracotta tiles and wrought iron balustrades. He added that any specific concerns can be met by way of conditions of consent and that the proposed materials are not a valid reason for refusal. 42 For the window openings Ms Hubert notes that the plans have been modified such that they are consistent with the general character of development in the area that could be further reduced in width, Mr Staas does not agree and considers this to be unreasonable and that the windows in the front façade are a response to the setting and outlook without resorting to over re-contemporary treatments. The windows are traditional in form and proportion and are to be of timber construction. 43 Ms Hubert considers that the positioning of the garage to Thornley Street will have a substantial visual impact on the streetscape and that it would be more appropriate for a vehicle access to the rear of the site. Mr Staas considers that the garage is incompliance with engineering requirements and has a limited visual impact while providing an improved amenity outcome for the site. He considers that the location of the garage is preferable to occupying the limited rear yard of the site which is the only private outdoor space and in his opinion there is no heritage issue resulting in this aspect of the design. 44 Ms Hubert considers that the proposed sandstone base fencing with palisade fencing is more open nature and the more acceptable than the solid sandstone fence, however, this introduces an element more consistent with Victorian development than with the Edwardian housing of the conservation area. Mr Staas on the other hand considers this contention is unreasonable as there are examples of similar sandstone and palisade fences within the subject conservation area and the existing makes no contribution to the streetscape in Arcadia. 45 On the solid masonry fencing proposed to Thornley Street, Ms Hubert considers that this inappropriate and that a timber paling fence up to 1.8 metres would be more appropriate in the conservation area. Mr Staas makes the point that there are examples of masonry fences in Thornley Street and that it is appropriate that the rear of the site on a corner block provide privacy with an increased fence height. He said that the design is a matter that can be dealt with by of condition and not a valid reason for refusal. 46 In her report of December 2007 Ms Hubert agrees that the primary streetscape that the existing house contributes to is Arcadia Avenue. 47 Included in the council's bundle of documents is a report by Mr John Oultram of March 2007 with a survey and shown in Figure 4. He is the opinion that No 1 Arcadia is a characteristic building in the conservation area and makes a positive contribution to the conservation area and the local streetscape. He notes that the previous local controls (DLEP and DDCP) did not rank buildings within the conservation area however the recently adopted DCP maps identify properties in the area as being: contributory; infill; vacant land; or neutral. He concludes that the existing dwelling is of moderate significance at a local level. He states that: the subject dwelling is one of four houses that appear to have been built at the same time at some common details and clearly recognizable as a group. They generally retain their form and considerable original detail. Ironically the subject house is the most intact while the alterations to the others are unfortunate scenes to draw a long bow to justify the demolition of the most intact at the group by the changes that have occurred to the others. Findings 48 The planning principle established in Helou v Strathfield Council [2006] NSWLEC 66 was referred to the court by the respondent in terms of the questions that should be addressed in this in assessing whether demolition should be permitted. It is important to note that the facts of the application before me are clearly distinguishable from those in the above case. Firstly the subject site is zoned for medium density and this zoning is confirmed in the recently gazetted Canada Bay LEP that includes the site in the highest density for the local government area. In Helou the site is zoned residential A. 49 I note that in the case cited that the single heritage expert stated that: Having regard to the heritage significance of the existing building and to its location with in the Abbotsford Road conservation area and within the vicinity of listed heritage items, it is my view that heritage impacts arising from the subject application would not be the public interest. Nevertheless issues such as reasonableness and equitable outcomes for owners of properties affected by heritage listings are also matters that are ultimately in the public interest. It is important that the owners of the subject dwelling are able to insure we a reasonable level of amenity without the constant version and worry of having to repair… if the cracks are able to be stabilised… then it would be considered to be in the public interest to retain that is building given its heritage significance is contributory item within the Abbotsford Road conservation area and a potential local heritage item. 50 I further note that the dwelling in the above case is in the immediate vicinity of several listed heritage items within that conservation area being houses located on the opposite side of Abbotsford Road. The Commissioner noted that "this proximity is a matter of relevance in the proceedings as the provisions of the instrument requires consideration of not merely the contribution which the dwelling makes to the conservation area but also the contribution which it makes to the setting of the listed heritage item". 51 The case before me is not only distinguished in terms of the zoning but the context. The existing dwelling in Arcadia Avenue is not in close proximity to other heritage items in particular opposite the subject site and it is not potentially a local heritage item (although I note the latter was not a factor in the determination of Helou). 52 The planning principle in Helou was established against the above background facts and the case before me requires a merit assessment having regard to the local planning framework. Indeed some councils have elected to incorporate planning principles in DCP's and the authority of Zhang v Canterbury City Council [2001] NSWCA 167 requires DCP's to be given central consideration and a focal point in the assessment of a development applications, noting that the merits of an application must be assessed and DCP's can not prohibit development allowed by a planning instrument and DCP's are discretionary. 53 The circumstances of this case requires consideration of the application under a previous planning regime with regard to the current provisions of as if a draft LEP. Similarly determinative weight cannot be given to the Canada Bay DCP that operates under the Canada Bay LEP. The DDCP does not assist in the classification of buildings in the conservation area whereas clearly the current planning regime identifies whether buildings in a conservation area are contributory, neutral or not. However, the current zoning of R3 does not assist in providing certainty. 54 In my overall assessment having regard to the zoning and the planning provisions of the instruments and DCP's I have concluded that demolition of the existing dwelling and its replacement with the proposed new dwelling is a satisfactory outcome in the circumstances of this case. In this regard I prefer the evidence of Mr Staas the building itself does not possess heritage value at a level that would require it to be retained above acceptable infill development and that demolition of the existing house would not adversely impact on the conservation area. 55 Having regard to the statutory planning regime under which I must assess the application, that requires consent for demolition in a conservation area, in all the circumstances of this case approval for demolition is justified. The unfortunate alterations and additions to the adjoining 3 houses referred to by Mr Outram and the fact that No 1 is the most intact dwelling of the four late Federation houses does not justify its demolition but at the same time this should not prevent its demolition on a merits assessment. 56 I agree with Mr Staas that, with the amendments to the proposal as shown in exhibit A, the new dwelling is "acceptable as a complimentary infill design". I am satisfied the proposal while it will read as a new dwelling it provides an acceptable presentation to the streetscapes of both Arcadia and Thornley Street and respects the elements found in the conservation area. The front set back to the dwelling and the landscaping of the front garden together with the materials and finishes of the design of the doors and windows and pitched roof provide an appropriate reflection of elements in the conservation area, as required by the DCP and Drummoyne LEP cl 22 (A). The location of the vehicular access to parking under the dwelling from the side street is not an intrusion on the streetscape and is preferable to access from Arcadia that is agreed between the experts is the primary streetscape. Furthermore, to provide parking at the rear would compromise the rear private open space for the dwelling. I am satisfied the proposal is not inconsistent with the scale and character of surrounding development and the proposed dwelling house does not warrant refusal. 57 On the question of impacts on views, it could be readily ascertained on the second site inspection that an alteration and addition to the existing dwelling would have a similar impact on views from the upper level of the dwelling at No 7 Thornley St. There is only a marginal exceedence of the 8.5 m height limit of the CBLEP at the front of the dwelling and this portion does not impact on views. The FSR of the proposal is 0.64:1 and this exceeds the 0.55:1 in the C B LEP. However, I am satisfied that this exceedence would not warrant refusal of the application and does not adversely impact on adjoining properties. Furthermore approval of this application will not create a precedent having regard to the fact that the previous planning regime of Drummoyne relevant to the assessment of this application did not contain an FSR for the subject site in the accompanying table, whereas the current FSR in the CBLEP provides clarity. 58 The conditions are as agreed to between the parties except that in my assessment there is a need for a deferred commencement for the applicant to provide a longitudinal section for the driveway. The reason for requiring a deferred commencement is that the applicant must in the first instance demonstrate that the necessary requirements for the driveway can be satisfied prior to the consent operating because in my assessment of this development application it is important that the height of the building is no greater than that shown in the amended plans that is an easve height of RL 32.9m and a ridge height of 34.135. Furthermore this is the subject of a deferred commencement because the existing dwelling house should not be demolished until such time as there is certainty that the driveway is satisfactory to serve the replacement dwelling. 59 The applicant provided a schedule of materials and finishes and colours and these are incorporated in the conditions of consent forwarded by the council. 60 Accordingly based on my merits assessment above the appeal should be upheld. Orders 1. The appeal in respect of the property known as No. 1 Arcadia Avenue, Drummoyne is upheld. 2. The development application submitted to Canada Bay Council as amended for demolition of the existing dwelling to allow the erection of a two storey dwelling house above semi-basement garages is determined by the granting of consent subject to conditions. 3. Exhibits except Exhibits A and H, 10 and 11 are returned to the parties. ___________________ J S Murrell Commissioner of the Court Appendix 1 Contentions Demolition of the Existing House 1. The proposed development should not be approved as it will result in the demolition of a contributory item located in a conservation area identified In the Drummoyne Local Environmental Plan 1986 (DLEP) and in the Canada Bay Local Environmental Plan 2008 (CBLEP). Particulars Drummoyne Local Environmental Plan 1986 (DLEP) a. The existing house is located in the Renwick, Day, Alexandra and Thornley Streets Drummoyne Conservation Area pursuant to Schedule 1A of DLEP; b. The age, scale, materials, details, design style and integrity of the existing house is consistent with much of the building stock In the Renwick, Day, Alexandra and Thornley Streets Drummoyne Conservation Area. In particular, the house is one of a group of Edwardian houses from 1- to 7 Arcadia Avenue all built between 1906 and 1911 and all of similar scale, form, design and detailing. The existing house reinforces the heritage significance of the Renwick, Day, Alexandra and Thornley Streets Drummoyne Conservation Area and accordingly is considered to be a contributory item In the Renwick, Day, Alexandra and Thomley Streets Drummoyne Conservation Area; Canada Bay Local Environmental Plan 2008 (CBLEP) c. The existing house is located in the Birkenhead and Dawson Estates Conservation Area pursuant to Schedule 5 of CBLEP. d. The age, scale, materials, details, design style and integrity of the existing house is consistent with much of the building stock in the Birkenhead and Dawson Estates Conservation Area. In particular, the house is one of a group. of Edwardian houses from 1 to 7 Arcadia Avenue all built between 1906 and 1911 and all of similar scale, form, design and detailing. The existing house reinforces the heritage significance of the Birkenhead and Dawson Estates Conservation Area and accordingly is considered to be a contributory item in the Birkenhead and Dawson Estates Conservation Area; DLEP and CBLEP e. The applicant has not provided any satisfactory information that the existing house is structurally unsafe; f. The applicant has not provided any satisfactory information as to the cost of any necessary remediation or rectification works that may be required with respect to the existing house; g. The applicant has not provided any satisfactory information that the cost of altering, extending or incorporating the existing house into a development of the site is so unreasonable that demolition should be permitted; h. In consideration of items (e), (f) and (g) above, the applicant has not provided adequate justification to support the demolition of a contributory building in a conservation area; Proposed New Dwelling Heritage 2. The proposed development should not be approved as the proposed new dwelling does not comply with the heritage alms and considerations relating to development within conservation areas set out In DLEP. Particulars a) The proposed new dwelling does not comply with clause 2A (b) contained in Part 1 of DLEP In that it does not take account of the scale and character of surrounding development. b) The proposed new dwelling does not comply with clause 2A (c) contained in Part 1 of DLEP in that it does not protect significant buildings and features of conservation areas, Including their setting and context, from loss of significance through inappropriate changes. 3. The proposed development should not be approved as the proposed new dwelling does not comply with the objectives relating to heritage conservation set out in CBLEP. Particulars a) The proposed new dwelling does not comply with clause 5.10 (1) (b) contained in Part 5 of CBLEP in that it does not conserve the heritage significance of the Birkenhead and Dawson Estates Conservation Area including associated fabric, settings and views. 4. The proposed development should not be approved as the proposed new dwelling does not comply with the objectives and performance criteria relating to heritage set out in the Drummoyne Area Comprehensive Development Control Plan (DCDCP). Height, Bulk and Scale 5. The proposed development should not be approved as the proposed new dwelling is of an excessive height, bulk and scale. Particulars a) The proposed new dwelling does not comply with clause. 2A (b) contained in Part I of DLEP In that it does not adequately take account of the scale and character of surrounding development. b) The proposed new dwelling exceeds the maximum height standard specified within clause 4.3 of the CBLEP. c) The proposed new dwelling does not comply with performance criteria P7 contained In Part 4.4 of DCDCP in that its effect on the heritage conservation area has not been carefully considered. d) The proposed new dwelling does not relate well to nearby development at 3-7 Arcadia Avenue which contributes to the significance of the conservation area and provides a visual context for the site of the proposed development, e) The site is at the southern end of Arcadia Avenue where it is of high visual importance in relation to the group of Edwardian houses from 1 to 7 Arcadia Avenue all built between 1907 and 1911. Of this group, the properties from I to 5 Arcadia Avenue are prominent in many views particularly those views from Salton Reserve and from Parramatta River to the east. These and the smaller Federation housing on the north side of Thornley Street contribute to the significance of the conservation area and provide the immediate visual context for new development on the subject site. Setbacks 6. The proposed development should not be approved as the proposed front setback from Arcadia Avenue is unacceptable. Particulars a) The proposed new dwelling does not comply with performance criteria P1 contained in Part 4.3 of DCDCP In that it does not maintain predominant street setbacks which contribute to the neighbourhood character of the area. b) The existing dwellings located at 1-7 Arcadia Avenue have deep setbacks from the street, increasing from I Arcadia Avenue to 5 Arcadia Avenue. The deep setbacks strengthen the visual relationship of the group and provides a visual context for the site of the proposed development. c) The proposed front setback of the main building bulk of the proposed new dwelling is notably less than the setback of the existing house at 1 Arcadia Avenue (measured at the bay window). The setback of the terrace in front of the house is substantially less than the setbacks of the original houses at 3-7 Arcadia Avenue. The front setback does not maintain the existing or adjacent front setbacks of the dwellings located at 3-7 Arcadia Avenue, d) The proposed new dwelling does not comply with performance criteria P7 contained In Part 4.4 of DCDCP in that the effect of the proposed front setback on the conservation area, has not been carefully considered. e) The proposed new dwelling does not comply with performance criteria P8 contained in Part 4.4 of DCDCP in that the proposed front setback does not ensure that style, form and detailing are matched where possible. f) The proposed new dwelling does not comply with performance criteria P2 contained in Part 6.5 of DCDCP in that the proposed front setback does not complement the existing predominant street setbacks in Arcadia Avenue. 7. The -proposed development should not be approved as the proposed terracing of the front garden In the Arcadia Avenue setback Is unacceptable. Particulars a) The proposed terracing in the front setback is inconsistent with the existing front gardens of the properties at 3-7 Arcadia Avenue which slope gently upwards from the front boundary to the dwelling. b) The proposed new dwelling does not comply with performance criteria P7 contained in Part 4.4 of DCDCP in that the effect of the proposed front setback on the conservation area has not been carefully considered. c) The proposed terracing in the front setback does not comply with performance criteria P8 contained in Part 4.4 of DCDCP in that it does not ensure that style, form and detailing are matched where possible, d) The proposed terracing in the front setback does not comply with performance criteria P1 contained in Part 4.5 of DCDCP in that it does not complement and enhance the conservation area within which the subject site is located. e) The proposed terracing in the front setback does not comply with performance criteria P5 contained in Part 6.5 of DCDCP in that it does not ensure that the front setback area is landscaped and does not complement the existing landscaping of the area and integrate the proposed new dwelling with the street. Building Entrance 8. The proposed development should not be approved as the design of the entrance to the proposed new dwelling is unacceptable. Particulars a) The proposed entrance to the proposed new dwelling does not comply with performance criteria P8 contained in Part 4.4 of DCDCP in that it does not ensure that style, form and detailing are matched where possible. b) The design of the proposed entrance to the proposed new dwelling is inconsistent with the existing entrances to the dwellings located at 3-7 Arcadia Avenue or at Thornley Street which typically have their entrances via a' verandah facing the main street frontage. Roof Pitch and Form 9. The proposed development should not be approved as the design of the proposed new roof is unacceptable. Particulars a) Council Is required under clause 22A (1) (a) of the DLEP to make an assessment of the pitch and form of the roof of the proposed new dwelling. b). The proposed roof pitch of the proposed new dwelling is 26 degrees which is considerably lower than the roof pitch of neighbouring dwellings at 3 - 7 Arcadia Avenue which is approximately 35 degrees. c) The proposed new dwelling does not comply with performance criteria P7 contained Part 4.4 of DCDCP in that the effect of the pitch and form of the proposed roof on the conservation area has not been carefully considered. d) The proposed new dwelling does not comply with performance criteria P8 contained in Part 4.4 of DCDCP in that the pitch and form of the proposed roof does not ensure style, form and detailing are matched where possible. e) The proposed new dwelling does not comply with performance criteria P11 contained in Part 4.4 of DCDCP in that the pitch and form of the proposed roof is incompatible with the character of the conservation area. Materials 10. The proposed development should not be approved, as the selection of proposed materials and finishes is unacceptable. Particulars a) Council is required under clause 22A (1) (c) of the DLEP to make an assessment of whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the proposed new dwelling are compatible with those of the materials used in existing buildings within the conservation area. b) The existing houses at 3-7 Arcadia Avenue and at 2 - 18 Thornley Street contribute to the significance of the conservation area and provide a visual context for the site of the proposed development. c) The selection of materials . for the proposed new dwelling is incompatible with the materials and colours of the dominant building styles in the conservation area and in particular with the original building materials of the existing houses at 3-7 Arcadia Avenue and at 2 -18 Thornley Street. d) The proposed new dwelling does not comply with performance criteria P7 contained in Part 4.4 of DCDCP in that the effect of the proposed materials and finishes on the conservation area has not been carefully considered. e) The proposed new dwelling does not comply with performance criteria P8 contained in Part 4.4 of DCDCP in that the proposed materials and finishes do not ensure that style, form and detailing are matched where possible. f) The proposed new dwelling does not comply with performance criteria P14 contained in Part 4.4 of DCDCP in the proposed materials and finishes do not complement the materials of existing buildings in the area. Window Openings 11. The proposed development should not be approved as the proposed window openings in the proposed new dwelling are unacceptable. Particulars a) Council is required under clause 22A (1) (b) of the DLEP to make an assessment of the style, size, proportion and position of the openings for windows in the proposed new dwelling. b) The existing houses at 3-7 Arcadia Avenue contribute to the significance of the conservation area and provide a visual context for the site of the proposed development. c) The proposed proportions of the openings of the windows visible from Arcadia Avenue and Thornley Street do not comply with performance criteria P9 contained in Part 4.4 of DCDCP in that they do not relate well to the window openings of the existing houses at 3-7.Arcadia Avenue. Positioning of Garage 12. The proposed development should not be approved as the location of the proposed garage Is unacceptable. Particulars a) The proposed new dwelling does not comply with performance criteria P3 contained in Part 4.3 of DCDCP in that the proposed garage does not minimise car parking impacts. b) The proposed new dwelling does not comply with performance criteria P2 contained in Part 4.5 of DCDCP in that the proposed garage does not minimise impacts from parking. c) The proposed new dwelling does not comply with performance criteria P1 contained in Part 4.6 of DCDCP in that the proposed garage Is not located at the rear or further back from the' street frontage in circumstances where rear or side access Is available. d) The proposed new dwelling does not comply with performance criteria P13 contained in Part 6.5 of DCDCP in that the proposed garage Is not integrated with, and is considered to dominate the building design. Fencing 13. The proposed development should not be approved as the demolition of the existing brick fencing on the Arcadia Avenue frontage and its replacement with sandstone fencing is inappropriate. Particulars a) The proposed metal palisade fencing to the Arcadia Avenue boundary and to part of the Thornley Street boundary does not comply with performance criteria P7 contained in Part 4.4 of DCDCP in that its effect on the conservation area has not been carefully considered. b) The proposed metal palisade fencing to the Arcadia Avenue boundary and to part of the Thornley Street boundary does not comply with performance criteria P8 contained in Part 4.4 of DCDCP In that it does not ensure that style, form and detailing are matched where possible. c) The proposed metal palisade fencing to the Arcadia Avenue boundary and to part ' of the Thornley Street boundary does not comply with performance criteria P1 contained in Part 4.5 of DCDCP in that the proposed metal palisade fencing does not complement and enhance the surrounding area. d) The proposed metal palisade fencing to the Arcadia Avenue boundary and to part of the Thornley Street boundary does not comply With performance criteria P4 contained in Part 4.5 of DCDCP in that Its impact is not limited as the proposed metal palisade fencing is incompatible with the conservation area. e) The proposed metal palisade fencing to the Arcadia Avenue boundary and to part of the Thornley Street boundary does not comply with performance criteria P6 contained In Part 4.5 of DCDCP in that the proposed sandstone fencing fails to establish the original fencing style. 14. The. proposed development should not be approved as the proposed solid masonry fencing on the Thornley Street frontage is inappropriate in the conservation area. Particulars a) The proposed masonry fencing on the Thornley Street frontage does not comply with performance criteria P7 contained in Part 4.4 of DCDCP in that its effect on the conservation area has not been carefully considered. b) The proposed masonry fencing on the Thornley Street Frontage does not comply with performance criteria P8 contained in Part 4.4 of DCDCP in that it does not ensure, that style, form and detailing are matched where possible. c) The proposed masonry fencing on the Thomley Street Frontage does not comply with performance criteria P1. contained in Part 4.5 of DCDCP in that it does not complement arid enhance the surrounding area. d) The proposed masonry fencing on the Thornley Street Frontage does not comply with performance criteria P4 contained in Part 4.5 of DCDCP in that it is incompatible with the conservation area. Submissions 15. The proposal development should not be approved having regard to the matters raised in submissions received by the Respondent. 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.