Land and Environment Court of New South Wales CITATION : Attard v Ku-ring-gai Council [2008] NSWLEC 87 APPLICANT Alfred Attard PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11033 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- construction of a dwelling to create a detached dual occupancy - impact on heritage item and setting and nearby heritage items LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 13, 14/02/08 DATE OF JUDGMENT: 27 February 2008 APPLICANT Mr G Newport, barrister SOLICITORS Law and Planning LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen SC SOLICITORS Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 27 February 2008 11033 of 2008 Alfred Attard v Ku-ring-gai Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council (the council) of Development Application DA 1241/06 for the construction of a dwelling to create a detached dual occupancy development at 37 Burns Road Wahroonga (the site). 2 The issues raised by the council relate to the impact of the proposed dwelling on the heritage significance of the existing dwelling and its landscaped setting and nearby heritage items. The site 3 The site is rectangular with a 98.65 m northern boundary to Burns Road and a 72.29 m western boundary to Cleveland Street giving a total site area of 7018 sq m. It is known as "Craignairn" and contains a two-storey grand estate house towards the centre of the site and an expansive landscape curtilage to both street frontages. Access to the dwelling is obtained via a formal driveway from Burns Road. Background 4 The site has been the subject of a number of development proposals since 2001. The relevant chronology is: 28 March 2002 - an appeal against the refusal of the council of Development Application DA 1377/00 for a housing development for aged persons or persons with a disability was dismissed by the Land and Environment Court. 8 April 2003 - Development Application DA 1372/02 was approved by the council for the subdivision of 2 existing lots into 3 lots, being lots 151 152 and 153. Lots 152 and 153 were subject to later approvals for residential dwellings. Both dwellings have been constructed and are now occupied. Lot 151 is the site in this appeal. 2 February 2005 - Development Application DA 882/04 was approved by the council for alterations and additions to the existing dwelling, erection of a detached triple car garage including a first floor loft and fencing. 23 March 2005 - Development Application DA 04/05 was refused by the council for the subdivision of Lot 151 into two lots. 16 January 2006 - an appeal against the refusal of the council of Development Application DA 04/05 was dismissed by the Land and Environment Court 10 May 2007 - Development Application DA 1241/06 was refused by the council for a dual occupancy development, alterations and additions to the existing dwelling including an attached double garages, swimming pool, tennis court and associated landscaping works. 6 September 2007 - Development Application DA 471/07 was approved by the council for alterations and additions to the dwelling house including an attached double garage, the construction of a tennis court, teahouse, pergola, swimming pool and landscaping works. Condition 1 of the development consent stated that the consent of modified Development Application 882/04 "to the extent that the approved freestanding garage structure in that consent is deleted" 15 October 2007 - the Class 1 appeal was filed for the refusal of Development Application DA 1241/06. An amendment was made to limit the extent of the appeal to the dual occupancy component of the original application. The proposal 5 The proposal is to create a detached dual occupancy development through the conversion of the approved garage/loft (Development Application DA 882/04) into a two storey dwelling. A separate vehicular driveway from Cleveland Street and landscaping works are also proposed. Relevant planning controls 6 The proposed development is permissible through Sydney Regional Environmental Plan No 53- Metropolitan Residential Development although the council raised no issues in relation to the provisions in this plan. 7 The site is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance (KPSO). Schedule 9 provides aims and objectives for residential zones. Clause 61D(2) provides that: The council shall not grant consent to a development application under subclause(1) unless it has taken in consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the item in any stylistic or horticultural features of its setting ." 8 Clause 61E provides that the council shall not grant consent unless an assessment has been made of the effect the development would have on the heritage significance of an item and its setting in the vicinity of the development. 9 Craignairn is identified as a heritage item of local significance under Part 2 of Schedule 7 of the KPSO. Other dwellings in the immediate vicinity (including the adjoining property at 37 Burns Road) are also identified as heritage items under the KPSO. 10 A number of local residents and interested parties provided evidence on site. All but one opposed the proposed development predominantly on the grounds of the impact on the heritage significance of Craignairn. Heritage impact Is there an unacceptable impact on the heritage significance of Craignairn? 11 The heritage experts, Mr Logan for the council and Mr Patch for the applicant, generally agreed on the heritage significance of Craignairn described below. Mr Patch however disagreed with that part of the description that describes the meticulous reconstruction, a dwelling that has retained its original curtilage and garden setting because of a recent subdivision and the heritage significance at a State level (see underlined passages) Craignairn is an outstanding example of a grand estate house built in Wahroonga for the wealthy elite following the construction of the North Shore railway line, it is rare for the meticulous reconstruction of the house in 1937 following a fire in 1936. It is an excellent example of the work of the prominent architect Howard Joseland and is all the more important as part of a collection of substantial Joseland designed houses in the immediate area. The significance of the house is enhanced by its large open garden setting and in particular the deep landscape setbacks from its boundaries on all four sides and the neighbouring houses. Sited in the centre of a very large site amidst a spacious landscape setting is evidence of design principles of the English Garden City Movement and the objectives of the early residents of Wahroonga in seeking to establish semi-rural estates. It epitomises Joseland's publicly exposed views on domestic architecture, including design for climate and the use of natural materials devoid of the irrelevant embellishments. The property is a prominent local landmark due to its corner location. It makes a strong contribution to the acknowledged heritage value of Wahroonga and, in particular, is pivotal within the highly significant sub precinct formed by Burns Road, Cleveland Street and Water Street which contains an important grouping of large Federation period houses, many designed by Howard Joseland. It has rarity as a large Wahroonga 'estate house' which has retained its original curtilage and garden setting . The property has heritage significance at a State level for its historic associations, aesthetic values and rarity and a significance at a local level for its historic and representativeness values. 12 Professor James Weirick, for the applicant and Ms Colleen Morris, for the council provided evidence on the heritage landscaping issue although there was some overlap with the evidence of Mr Logan and Mr Patch. Ms Morris and Professor Weirick generally supported the views expressed by Mr Logan and Mr Patch respectively. Logan evidence 13 Mr Logan states that the proposal will have a significant impact on the heritage significance of Craignairn. The existing open setting on the western side of Craignairn is important to its visual setting and an essential component of its heritage curtilage. The proposal will disrupt this setting because of the location of the proposed dwelling in close proximity to Craignairn. The separate driveway and double carport fronting Cleveland Street will reinforce the perception of the new structure being a separate dwelling on an alienated lot. This would not be the case with the approved garages and loft, which will appear as an ancillary structure to the main residence. 14 In terms of streetscape, Mr Logan states that the contribution that Craignairn makes will be diminished because of the juxtaposition of a new dwelling adjacent to Craignairn. Views from Cleveland Street will be affected by the new structure, screen plantings, particularly in the winter months when there is less screening from deciduous trees and the new driveway. 15 Overall, Mr Logan states that previous heritage assessments have identified the generous, open setting of the land around of Craignairn as an important part of its heritage significance. The reports also identify the importance of the house being able to be viewed in the round. In his opinion, the proposal will have an unacceptable impact on the setting and curtilage of Craignairn and consequently its heritage significance. Patch evidence 16 Mr Patch states that the relationship of Craignairn with its grounds has been fluid over time and has been recently substantially changed through the subdivision of the rear part of the original parcel of land. Given this and the approved nature of the garage and loft structure, he states that the impact arising from the proposal on Craignairn will be slight. The curtilage should be considered a "truncated curtilage" which precludes interpretation, appreciation, and enjoyment or experience from public places in the manner it was seemingly intended. 17 Mr Patch states that there will be negligible impacts on the significant views of Craignairn. It is clear from the architecture of Craignairn that it was not intended to be seen "in the round" but from a number of different settings. Views of Craignairn are hierarchical in nature, ranging from the Burns Road gates, filtered views of the front portion of the west elevation from Cleveland Street and the oblique views of the service area from Cleveland Street to the southern portion of that boundary. 18 The heritage significance of Craignairn will not change substantially according to Mr Patch as it was originally not mentioned in the listing statement in detail, but is now better understood and documented. The significance of Craignairn has also necessarily changed as a result of the previous subdivision and consents for alterations and additions and to erect additional buildings within its grounds. The proposal is a further change that, in itself, will not have an adverse impact on the heritage significance of the site. Findings 19 With the benefit of the site view and the evidence of Mr Logan and Mr Patch, I agree with Mr Logan that the proposed development will have an unacceptable impact on the heritage significance of Craignairn for a number of reasons. Firstly, I accept that the use of the proposed building is an important matter in considering the impact on the heritage significance of Craignairn. It is not simply just a matter of comparing the physical form of the approved garage/loft to the proposed dwelling. Despite Mr Patch's evidence, the location of another dwelling in close proximity to Craignairn has a far greater impact on the significance of the item than if the structure was associated with the residential use of Craignairn. The approved garage/loft structure would read as a structure associated with and ancillary to the residential use of Craignairn whereas the proposed dwelling will clearly read as a separate dwelling. The proposed driveway from Cleveland Street and the location of an open carport reinforce the use as a separate dwelling. 20 Secondly, the bulk and massing of the proposed dwelling will obscure additional portions of the view to Craignairn from Cleveland Street beyond those views obscured by the approved garage/loft building. The proposed dwelling has a setback of 19.5 m to Cleveland Street whereas the proposed garage/loft is set back in excess of 25 m. Additionally, the design of the proposed dwelling provides for two-storey construction at the Cleveland Street setback and this construction further adds to the bulk and massing when viewed from Cleveland Street. 21 Thirdly, Craignairn was designed as a grand estate house set in a large open garden setting. It is centrally located on the site and even though a portion of the original site has been subdivided, the house still maintains an imposing presence when viewed from Cleveland Street and Burns Road. At the very least, Craignairn was designed to be viewed from Cleveland Street and Burns Road if not from all four sides. The opportunity to view Craignairn will be further diminished with the proposed development. I do not accept that the earlier subdivision of the site can be seen as any justification for the further erosion the heritage significance of Craignairn. 22 Fourthly, it was argued by Professor James Weirick that the proposed development could be seen as a subsidiary element such as a gardener's cottage that may have been consistent with its historical past. In my view, this argument cannot be supported. The proposed dwelling will clearly be viewed as a separate dwelling and not as a hypothetical building associated with the past use of Craignairn, particularly as there was no evidence to suggest such a building existed on the site. 23 In accordance with cl 61D(2) and for the reasons mentioned above, I find that the proposal would unacceptably affect the heritage significance of Craignairn and as such the development application must be refused. 24 For completeness I will briefly address the other issues. Is there an unacceptable impact on items in the vicinity of the development? 25 Mr Logan states that the existing residence is part of an important grouping of similar properties in Burns Road all designed by Howard Joseland. These dwellings all have expansive garden settings with only a single residence on each property. The proposed development would affect the contributory value of Craignairn in this grouping and would diminish the heritage value of the adjacent properties as part of the grouping. 26 Mr Patch considers that the nearby heritage items are removed from the site of the proposal and that it will have no significant impact on either the significance or setting of any item in the vicinity. 27 On this issue, I agree with Mr Logan. Craignairn forms part of a significant grouping of Howard Joseland designed dwellings and while many are screened from Burns Road through fencing and vegetation they largely maintain their original form and importantly, their landscape settings without the encroachment of another dwelling. Is there an unacceptable impact on the landscape setting of Craignairn? 28 Ms Morris and Professor Weirick agreed that aspects of the landscaping plan are consistent with a generalised knowledge of interwar and post-war planting schemes. There was originally disagreement on its level of acceptability however following further discussions there was agreement on an appropriately worded condition (condition 30) that provided specific objectives for the preparation of a Landscape Masterplan. 29 I am satisfied that an appropriately designed landscape scheme for the site can be designed to reflect its heritage significance and at the same time provide a practical recreation area for the residential use of the property. Orders 30 The Orders of the Court are: 1) The appeal is dismissed. 2) Development Application DA 1241/06 for the construction of a dwelling to create a detached dual occupancy development at 37 Burns Road Wahroonga is refused. 3) The exhibits are returned. ____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.