Land and Environment Court New South Wales Medium Neutral Citation: Clegg v Waverley Council [2012] NSWLEC 1103 Hearing dates: 19 and 20 April 2012 Decision date: 27 April 2012 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The appeal is upheld in part. (2)The application under s 96(2) of the Environmental Planning and Assessment Act to modify development consent (DA 721/2010), is approved subject to the conditions in Annexure A. (3)The exhibits, except exhibits 2, 7, A, H, O and P may be returned. Catchwords: DEVELOPMENT CONSENT - modify conditions. Impact on heritage significance. Compliance with rear building line and impact of visual bulk and overshadowing. Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Category: Principal judgment Parties: Mr Edward Clegg (Applicant) Waverley Council (Respondent) Representation: Mr M Baird, barrister (Applicant) Mr S Patterson, solicitor (Respondent) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10023 of 2012 Judgment 1This is an appeal against the deemed refusal by Waverley Council (council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify conditions of a development consent for alterations and a first floor addition to an existing dwelling with a new garage and swimming pool at 249 Birrell Street, Bronte (site). 2The development application was approved on 6 August 2011. It included conditions of consent which required design modifications to the proposal. The s 96 application originally sought to delete or modify conditions 2(a) - (g), 7(d), 20, 23(b), (c), (d), (g), 49, 58 and 60. The s 96 application also seeks to amend the approved plans in Condition 1. The applicant has now agreed to retain some conditions and council has agreed to some of the amendments sought by the applicant. The principal conditions that remain in dispute are: 1(a) The new slate roofing is not approved and the existing terracotta Marseilles tile roof cladding is to be retained to the existing residence and additions to main roof, that is the main pyramidal element, front gable and verandah roofs. Replacement of damaged tiles or re-roofing is acceptable subject to use of matching unglazed terracotta Marseilles tiles. ... (c) The whole garage be relocated so it is setback at least 700 mm from the western boundary. ... (e) The brickwork of the front façade is restored in accordance with advice from the appointed heritage architect to form a consistent while with the roof tiles and paving. ... (g) Bedroom 2 on the first floor at the rear is to be pulled in to be in line with bedroom 1 so there is no first floor above the living area. 3Other conditions in dispute are resolved by the determination of the above conditions and the submission of amended architectural and landscape plans. Site and Locality 4The site is located on the southern side of Birrell Street. It is rectangular in shape with an area of 700 sq m. There is a single storey federation detached dwelling on the site with a separate garage. The site is adjoined to the east, west and south by single storey detached dwellings. There is a three storey residential flat building to the east (253 Birrell Street). The surrounding development is predominately residential with a mixture of detached dwellings and medium density development. Planning controls 5The site is zoned 2(a) Residential - Low Density under Waverley Local Environmental Plan 1996 (LEP 1996) and is identified as a heritage item. 6Waverley Development Control Plan 2010 (DCP 2010) applies to the site. It relevantly provides objectives, strategies and controls for dwelling houses (Part D1) and Part H (heritage). 7Amendment 33 to LEP 1996 was made on 23 December 2011. This lists the adjoining house at 247 Birrell Street as a heritage item. As Amendment 33 to LEP 1996 is imminent and certain, it should be given appropriate weight (see Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279). 8Draft Waverley Local Environmental Plan 2011 and Draft Waverley Development Control Plan 2011 have been exhibited but the parties did make any submissions regarding these documents. Evidence 9The matter commenced as a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (Court Act). The parties did not reach agreement and the conciliation conference was terminated and the proceedings were disposed of as a hearing under s 34AA(2)(b)(i). 10The Court visited the site and heard evidence from adjoining residents. The key concerns of the residents at 251 Birrell Street were the height, bulk and extent of the second floor addition, which adjoins the rear open space of their property. They consider the addition will adversely impact on their amenity through loss of solar access, ventilation and increased enclosure. They also consider the addition does not comply with the rear building line in DCP 2010 as it is based on the extent of the pergola at 247 Birrell Street rather than the house. 11The owner at 70 Belgrave Street who also spoke on behalf of the owner at 72 Belgrave Street was concerned about the visual impact of the second storey addition. She also raised concerns about the proposed planting and considered that native species should be used to reinforce the vegetation corridor that exists. 12The owner of 247 Birrell Street was particularly concerned about the location of the proposed garage. He considered that the proposed garage should not be built to the boundary, as this would abut the living room of his property. He stated that his house is heritage listed the proposed garage would impede subfloor ventilation, preclude access for maintenance, particularly of the dampcourse, and result in an inappropriate built form. 13The Court heard expert heritage evidence from Mr S Davies (applicant) and Mr C Brady (council) and planning evidence from Mr A Darroch (applicant) and Mr K Nash (council). Condition 2(a) and 2(e) 14Condition 2(a) permits the replacement of damaged tiles or re-roofing subject to the use of unglazed Marseilles terracotta tiles to match the existing roof. The heritage experts disagree whether the replacement of the terra cotta tiles with slate, as sought by the applicant, is appropriate. 15Mr Brady considered that part of the significance of the house is the roof and tuck pointed brick front facade which are identified in its inventory sheet. 16Mr Brady considered that the retention of Marseille tiles and the reinstatement of the original tuck pointed brick work would enable a clear interpretation of the original house in relation to the proposed additions. While he accepted that slate roofing is also generic to federation houses, he considered that in this location terracotta is more appropriate as it matches what currently exists on the house and the adjoining heritage item at 247 Birrell Street. Terracotta, rather than slate, is also predominately used on other federation houses in the area. Mr Brady also noted that the use of terracotta would involve significantly less cost and removal of original fabric than if slate were used. He estimated the cost of slate to be in the order of $100,000 and that it would require the replacement of roof structure, such as battens. Further, he considered that if slate were to be used this should be 'Welsh slate' with appropriate terracotta finishes and ridge capping. 17Mr Davies did not dispute the likely costs involved and agreed on the construction and detailing of a replacement slate roof. He considers that a slate roof, being typical of the period and style of dwelling, is suitable replacement roofing. Particularly, as there are other examples of slate roofes in the area and there is a great deal of variation in the streetscape between roofing materials. He considered the use of slate and the existing house to be not incompatible with the use of terracotta tiles on 247 Birrell Street. 18Mr Brady and Mr Davies agree that the existing dwelling had been painted after its heritage listing by previous owners without approval. They agree that it is not reasonably feasible to remove the paint from the side walls as these had also been bagged with cement slurry. While they agree that it is feasible to remove the paint from the front façade, they disagree whether this is reasonable or necessary to enhance the heritage significance of the item. 19Mr Davies considered the removal of the paint may not achieve a satisfactory result given that remnants of paint may remain and that the existing brickwork appears patched and the side elevations will remain painted. Further, he considered it to be unnecessary due to the significance of the item, which is not part of a consistent group of unpainted houses and the likely costs involved. 20Mr Brady estimated that the cost of tuck pointing the front façade (through the application of brick stain and chalking) would be about $5,000 and that it would repair previous patching and reinstate the original façade. He considered that it was not uncommon for the front façade to be "more sophisticated" than the sides and that, provided the sides were painted in a consistent colour, the reinstatement of the tuck pointed brickwork of the front façade is appropriate. Finding 21The inventory sheet relevantly describes the house and it significance as: Description: Very good Federation cottage. Standard asymmetrical form. Tuckpointed brick. Verandah roof continuous with main roof. Marseilles tiles with ridge capping. Outstanding flying gable over canted bay. Decorated in timber and roughcast. Leadlight sash windows (not original?) with moulded sills. Turned timber verandah posts. Decoration lost to frieze? Also of note is end glazing to verandah, in multi-paned coloured glass. Minor alterations only. Brick fence is sympathetic if not original. Significance: Good local example of a Federation cottage, in excellent condition. One of the best old houses in the area. Local significance. 22Since the inventory was prepared, the tuck pointed brick has been painted. Significant additions have also been approved to the dwelling. While the adjoining house at 247 Birrell Street is also now heritage listed as a heritage item, the relationship and any consistency between these two houses will be significantly altered by the approved additions. 23Condition 2(a) permits the removal of the existing Marseille terracotta roof tiles subject to their replacement with Marseille tiles. The applicant would prefer to use slate. 24Both slate and Marseille tiles are traditionally used on Federation houses and there are examples within the area of both slate and terracotta, although terracotta is predominately used in the immediate vicinity of the site. 25The heritage listing for the site includes the Marseille tiles with ridge capping in its description. Mr Davies questioned whether the house reached the threshold for listing as a heritage item. Nevertheless it remains a listed item. 26The recent heritage listing for 247 Birrell Street refers to a number of other houses in Birrell Street in the vicinity of the site which are described as comprising "A well detailed and consistent group of free standing residences constructed in the Bungalow style." 27Condition 2(a) permits replacement of damaged tiles or re roofing, although it is not clear whether re roofing is necessary because of the condition of the roof or the preference of the owner. On balance, I accept Mr Brady's evidence that if the original terracotta tiles are removed they should be replaced with unglazed terracotta, as there appears to be no heritage reason to support their removal and replacement with slate. The use of slate will involve unnecessary removal of original fabric, such a battens which would not be required if the original roof were to be repaired or replaced with the same tiles. Terracotta is used on the adjoining heritage item and on other items in the street. The cost of providing slate is significantly more than terracotta. Further, it is a preferable heritage outcome, depending on the condition of the existing tiles, that they be repaired rather than replaced. 28The original tuck pointed brick has been painted. It may be feasible for this to be reinstated, however, I do not accept that it is reasonable or warranted given the significant alterations that have been approved, the painting of the side walls and the other examples of painted federation buildings in the vicinity. Condition 2(c) 29The experts disagree on whether the proposed garage should be located on the boundary, as proposed in the s 96 application, or set back from the boundary 700 mm, as required by Condition 2(c). 30Mr Nash and Mr Brady consider that the garage should be set back as this will better maintain ventilation and access to 247 Birrell Street for maintenance, particularly of the dampcourse. Further, it will provide a degree of separation between 247 and 249 and retain their appearance as freestanding dwellings. They agree that a 600mm setback would be sufficient for separation and access, while still maintaining an adequate width for the entry courtyard to the proposed additions. Mr Brady considers that 247 and 249 were designed to be freestanding dwellings based on their built form and detailing. 31Mr Davies and Mr Darroch consider that the construction of the garage on the boundary responds to the recommendations of the Independent Hearing and Assessment Panel (IHAP) and is acceptable as it will remove planting, provide drainage and prevent debris accumulating. In their opinion, adequate ventilation will be maintained through the provision of air vents in the proposed garage wall. Mr Darroch stated that the proposal complies with the setback requirements of s 5.3 of DCP 2010, which anticipates zero setbacks. 32Mr Darroch was particularly concerned that a 600 mm setback would create 'dead space' which provided no utility. Further, he stated that a 600 mm separation would not be viewed from the streetscape due to vegetation and would not achieve a perceived separation between the dwellings. Findings 33DCP 2010 permits, in certain circumstances, a zero setback, however, given the heritage listing of 247 and 249 Birrell Street. While the heritage listing occurred after the s 96 application was lodged, it is relevant to consider the impact of the proposal on the significance of 247 Birrell Street. 34The inventory sheet for 247 Birrell Street identifies it as an example of the Federation Bungalow style and as part of a "well detailed and consistent group of freestanding residences constructed in the Bungalow Style". I accept Mr Brady's evidence that it is important to maintain 249 and 247 as separate dwellings. The location of the garage on the boundary would provide continuous built form across nearly all of the site and 247 Birrell Street. 35Mr Brady is a heritage architect and I accept his evidence that the construction of the garage on the boundary is likely to impede subfloor ventilation to the living room of 247 Birrell Street and exacerbate maintenance issues, particularly of the damp proof course. 36Further, I do not consider a 600 mm setback of the garage would impose an unreasonable burden on the use of the site. The DA proposed a 350 mm setback which has been reduced in the s96 application to 150 mm setback which is enclosed on the top and sides. 37The courtyard and the garage have the same width in the DA and the s 96 application (2.9 m courtyard and 3.6 m garage, although the engaged piers were on the inside skin in the DA whereas they are on the outside skin in the s 96 application). 38To achieve a 600 mm separation, the garage or the courtyard width would have to be reduced by 250 mm. This minor reduction would not impact on the usefulness or the amenity of either of these spaces and is not unreasonable. Condition 2(g) 39Mr Nash and Mr Darroch held different opinions on the location of the rear building line and consequently whether the proposed second storey (comprising bedroom 2, walk-in robe and desk/study) complies with cl 5.3.1 of DCP 2010 for rear setbacks. They also disagree whether the proposal achieves the strategy in cl 5.3.1(a) for rear setbacks. In particular, whether the proposed second storey would minimise visual and other bulk related impacts to the adjoining property at 251 Birrell Street. 40During the course of the hearing, the applicant proffered an amended condition 2(g) which would require the deletion of the desk/study and walk-in wardrobe and consequently enable the setback of the second floor to be increased to 4 m from the boundary. 41While this did not totally alleviate Mr Nash's concerns, he accepted that the change could be implemented through a condition and that it would significantly reduce the visual bulk and overshadowing of the proposal. Findings 42Clause 5.3.1 of DCP 2010 provides the following strategy and control for setbacks to achieve the objectives of the control: Strategy 5.3.1(a) The distance between dwellings on adjoining properties allows adequate solar penetration and privacy and minimises visual and other bulk-related impacts. Control The rear building-line of dwelling-house development is built to the predominant rear building-line of buildings in its vicinity. Side setback for a 1 or 2 storey dwelling is 900mm. 43The control is unclear as to how to determine "the predominant rear building-line of buildings in the vicinity. 44In considering the objectives and strategy of the control, I accept Mr Nash's evidence that the residential flat building at 253 Birrell Street should not be considered in determining the rear building line. A residential flat building is a different form of development and clearly has different impacts to those which are sought to be achieved by this control for residential dwellings. The buildings in the vicinity which would most significantly be impacted upon by the development and which are identified in the strategy are the adjoining buildings at 251 and 247 Birrell Street. Even if a wider "vicinity" is considered this would reasonably extend to the west as far as the corner of Birrell Street and Murray Street. The building line of these dwellings (other than 245 Birrell Street) is similar and would form the "predominant building line". I also accept Mr Nash's evidence that the "building line" should not include secondary structures, such as pergolas. 45However, even if the proposal does not comply with the control, the question is whether the strategy for the control is met. I accept Mr Nash's concerns and those of the residents at 251 Birrell Street that the proposal in its unamended form would not minimise visual and other bulk related impacts on the rear open space of 251 Birrell Street. However, the condition proffered by the applicant, which increases the setback of bedroom 2 to be 4 m from the eastern boundary, will minimise the visual bulk to an acceptable level as well as further reduce overshadowing. With this change, I accept that the proposal would meet the strategy for rear setbacks in cl 5.3.1 of DCP 2010. 46The imposition of the amended condition 2(g) will also necessitate amendment to the roof form to the addition. I have added a further part to the condition which requires that the roof form on the first floor addition comprising bedroom 2 be amended to have a significantly lower pitch or a flat roof to further reduce the perception of bulk. I note that this is consistent with the recommendation of IHAP. 47The increased setback of bedroom 2 will also result in the deletion of condition 60 which required the removal of the palms which council contended would be impacted upon by the original proposal. Orders (1)The appeal is upheld in part. (2)The application under 2 96(2) of the Environmental Planning and Assessment Act to modify development consent (DA 721/2010) is approved subject to the conditions in Annexure A. (3)The exhibits, except exhibits 2, 7, A, H, O and P may be returned. Annelise Tuor 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. Decision last updated: 30 April 2012