Land and Environment Court New South Wales Medium Neutral Citation: Zuo v City of Ryde Council [2017] NSWLEC 1665 Hearing dates: 16 November 2017 Date of orders: 24 November 2017 Decision date: 24 November 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Development Application No. LDA2016/0420 for the demolition of all existing structures and construction of a two storey attached dual occupancy at 40 Miriam Road, Denistone is refused. 3. The exhibits are returned with the exception of exhibit 4. Catchwords: DEVELOPMENT APPLICATION: demolition of all existing structures and construction of a two storey attached dual occupancy; whether existing dwelling should be demolished; whether proposed design acceptable Legislation Cited: Environmental Planning and Assessment Act 1979 Ryde Local Environmental Plan 2014 Category: Principal judgment Parties: Kuang Zuo (Applicant) City of Ryde Council (Respondent) Representation: Counsel: Mr V Conomos, solicitor (Applicant) Mr B Stephen, solicitor (Respondent) Solicitors: Conomos Legal (Applicant) City of Ryde Council (Respondent) File Number(s): 2017/192103 Publication restriction: No Judgment 1. This is an appeal against the refusal of Development Application No. LDA2016/0420 for the demolition of all existing structures and construction of a two storey attached dual occupancy at 40 Miriam Road, Denistone (the site). 2. The council maintains that the proposed development should be refused because: * the existing dwelling should not be demolished because of its heritage qualities, and * the proposed design of the development does not respect the heritage qualities of the area, particularly the adjoining heritage item. 1. A number of local residents provided evidence on the site inspection and supported the reasons proposed by the council. 2. The appeal was subject to mandatory conciliation and arbitration on 16 November 2017 under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 3. The parties proposed, and the Court agreed that it was not necessary for any cross examination of the expert witnesses. The site 1. The site is Lot 89A in DP 6272. It is generally rectangular in shape with a frontage of 25.91m to Miriam Road and a depth of 39.115m for a site area of 1013.4sqm. 2. The site currently contains a brick single storey dwelling house with a tiled roof, as well as a detached brick garage and shed towards the rear of the site. The dwelling is in poor condition. The site also contains an assortment of trees and shrubs, some of which are proposed to be removed with other vegetation being retained and embellished with replacement planting. 3. Development in the local area is predominantly characterised by a mix of single and two storey dwelling houses, interspersed by dual occupancies and multi dwelling housing development. 4. Adjoining the site to the south at 38 Miriam Road, Denistone, is a single storey dwelling house of brick and tile construction. This dwelling is listed as a heritage item. Adjoining the site to the north at 42 Miriam Road, Denistone is a single storey dwelling house of rendered brick and tile construction and adjoining the site to the east (across the street) at 21 Miriam Road, Denistone is a single storey dwelling house of brick and tile construction. Relevant planning controls 1. The site is zoned R2 Low Density Residential under Ryde Local Environmental Plan 2014 (LEP 2014). The proposed development is permissible with consent within this zoning. Clause 2.3(2) provides that the Court "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for a variety of housing types. 1. The council raised no issue with cl 2.3(2). 2. Clause 4.3 provides maximum height of buildings and cl 4.4 provides maximum floor space ratio for the site and it was agreed that the proposed development satisfies these development standards, 3. Clause 5.10 provides requirements for Heritage conservation. Clause 5.10(5) states: (5) Heritage assessment The consent authority may, before granting consent to any development: (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. 1. The applicant provided a Heritage Impact Statement from CK Architects (July 2016) and a further a Heritage Impact Statement from Urbis (March 2017). 2. Schedule 5 of LEP 2014 provides heritage items. The dwellings identified as heritage items and being in the vicinity of the site are: * 38 Miriam Road (immediately adjoining and to the south of the site); * 30 Miriam Road (approximately 100m to the south of the site); * 24 Miriam Road (approximately 170m to the south of the site); * 22 Miriam Road (approximately 200m to the south of the site); * Miriam Road (approximately 270m to the south of the site); and * 14 Miriam Road (approximately 300m to the south of the site). 1. Ryde Development Control Plan 2014 (DCP 2014) applies to the proposed development. Should the existing dwelling be demolished? The evidence 1. Expert heritage evidence was provided by Mr Stephen Davies, for the applicant and Ms Samantha Polkinghorne for the council. Expert town planning evidence was provided by Mr Andrew Robinson for the applicant and Mr Chris Young for the council. 2. The council's contention states that the application should be refused because the existing house on the site has heritage significance and strongly contributes to the streetscape character of Miriam Road and also has an important association with the adjoining heritage item at 38 Miriam Road. 3. The council's position on this contention was addressed by Mr Young and not Ms Polkinghorne despite the clear heritage implications of the contention. Mr Young indicated that the demolition of the existing dwelling could be supported, provided the replacement dual occupancy development was of a superior design than that proposed in this application. A further design would need to be appropriate in the context of the site and its proximity to the adjoining heritage item; and which reflects the desired future character of this location. 4. Mr Davies states that the dwelling is not considered to reach the requisite level of significance for individual heritage listing. Although the dwelling is an example of an Inter War bungalow, it is resultant of a typical early twentieth century subdivision and does not comprise remarkable fabric. Further, it lacks certain distinctive qualities typically associated with the style, including a predominant horizontality and heavy built veranda posts. 5. As such, Mr Davies does not believe that there are sufficient grounds to refuse demolition of the existing dwelling on the basis that its removal would be unacceptable because it has heritage significance and strongly contributes to the streetscape character of Miriam Road. Particularly given the currently dilapidated condition of the dwelling and that it is not listed as a heritage item of within a heritage conservation area. Findings 1. There is no evidence to suggest that the existing house on the site has heritage significance and strongly contributes to the streetscape character of Miriam Road. There is also no evidence to suggest the existing house has an important association with the adjoining heritage item at 38 Miriam Road to the point where it should not demolished. 2. These findings however do not authorise the demolition of the dwelling on site. What is the effect of the dual occupancy on the adjoining heritage item? The evidence 1. Mr Davies states that the statement of significance for the heritage listed house at 38 Miriam Road notes that it is historically significant as part of the subdivision of the Darvall Estate and as part of a cohesive streetscape of Federation and Inter War Bungalow houses. He considers that the association of the heritage item and the site with the Darvall Estate is not significant historically as the subdivision represents a typical early subdivision of an earlier estate. All dwellings have an association with their subdivision however this subdivision is now not a cohesive one due to the high level of late 20th century development. Further, the streetscape does not have a unified character beyond the common detached house typology. In fact, there are numerous examples of late 20th century dwellings on the street which are of no architectural merit. As such, it is considered that the houses on the street should be assessed for their individual significance. 2. The house adjacent has an identifiably better quality than the site, including complex roof forms and original details. As such, Mr Davies considers it appropriate that the heritage listing is confined to the adjacent site. 3. Ms Polkinghorne states that the setbacks proposed between the heritage item and the dual occupancy to be insufficient and unsympathetic. At ground level moving closer to the boundary than the existing building reduces views of the heritage item from the public domain, an effect which is further compounded by the building not taking the opportunity to step back at the upper level. 4. In her opinion, the proposed design does not take into consideration the surrounding character or scale of the buildings in the immediate vicinity on Miriam Road, and most particularly the heritage item at 38 Miriam Road. The symmetrical and 'blocky' form is not characteristic of the residential development either side of the site or across the road and further diminishes the setting of the heritage item. Findings 1. The applicant provided two sets of plans. The applicant seeks to rely on the plans submitted with the appeal (Exhibit A) however a further set of plans was provided (Exhibit F) that provided increased setbacks to 38 Miriam Road at ground level. The applicants position was that the Exhibit A plans were acceptable however if the Court considered these plane unacceptable then the applicant would accept an approval based on the Exhibit F plans. The council experts maintained that neither the Exhibit A nor the Exhibit F plans were acceptable. 2. The principal issue between the parties related to the impact on the heritage significance of 38 Miriam Road. The Exhibit A plans provide for a 1.5m setback for the majority of the elevation to the adjoining heritage item. The 1.5m setback for the two storey elevation extends for around 10m of the 15m long elevation. The single storey section of the elevation is located at the front of the dwelling where the setback to the second storey component is around 7m. The front elevation is predominantly symmetrical. 3. The Exhibit F plans provide for a 2m setback for the majority of the elevation to the adjoining heritage item. The 2m setback occupies approximately the same ratio as the Exhibit A plans with around 10m of the 15m long elevation being the two storey elevation. The single storey section of the elevation is located at the front of the dwelling where the setback to the second storey component is also around 7m. The front elevation is predominantly symmetrical although some attempt has been made to provide an asymmetrical street elevation. 4. In considering the opposing evidence, I prefer the evidence Ms Polkinghorne for a number of reasons. First, I agree with Ms Polkinghorne that the reduction in the side setback conflicts with the prevailing setbacks in the area with a consequent reduction in the rhythm established by the Federation and Californian bungalows in the area. This impact is exacerbated by the proposed two storey construction, particularly where there is either a 1.5m or 2m setback. With the benefit of the site inspection, I do not accept that any assessment should be restricted to the adjoining building given the character and scale of the buildings in the immediate vicinity of the site. 5. Second, compliance with the DCP 2014 side setbacks should not be given any significant weight when the site adjoins a heritage item. Clearly, the impact on the heritage significance of a heritage item prevails over a standard DCP setback requirement. 6. Third, I do not accept that the 10.7m distance from the heritage building to the common boundary with the site is just simply a setback. As Ms Polkinghorne stated on site, this area forms part of the understanding of the dwelling given the double fronted form of the dwelling (one frontage to the street and the other frontage to the area between the dwellings) and the wrap around verandah to both frontages. 7. The existing single storey dwelling on the site appears to be setback around 3.5m from the boundary with the heritage item although the location of the existing building is not shown on Exhibit A or Exhibit F. In my view, any new dwelling on the site should maintain a setback no less than the existing building at the ground level and the second storey should be set back no less than a further 1m than the ground level setback for a similar distance to that shown on Exhibit A and Exhibit F. The 7m setback to the second storey portion of the building near the front of the site should also be maintained 8. Fourth, and while the symmetrical street elevation was sought to be addressed in the Exhibit F plans; the result was largely meaningless. A greater effort is needed to provide a more asymmetrical design that does not "jar' with the rhythm established by the Federation and Californian bungalows in the area. 9. In accordance with cl 5.10(5) and for the reasons in the preceding paragraphs, I am not satisfied that the applicant established that "the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item …. concerned" is acceptable. . Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. LDA2016/0420 for the demolition of all existing structures and construction of a two storey attached dual occupancy at 40 Miriam Road, Denistone is refused. 3. The exhibits are returned with the exception of exhibit 4. _____________ G 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. Decision last updated: 27 November 2017