Land and Environment Court New South Wales Medium Neutral Citation: Gungor v Canterbury-Bankstown Council [2018] NSWLEC 1500 Hearing dates: 7 August 2018 Date of orders: 25 September 2018 Decision date: 25 September 2018 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development Application No. DA 148/2017 for a dual occupancy development and Torrens Title subdivision at 115 Hay Street, Ashbury is refused. Catchwords: DEVELOPMENT APPLICATION: Ashbury Heritage Conservation Area – dual occupancy – respecting traditional character of Ashbury while facilitating healthy renewal – significance of localised erosion of heritage character Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Joukhador v Canterbury City Council [2015] NSWLEC 1027 Texts Cited: Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Ali Gungor (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: L Walsh (Applicant) Solicitor: A Seton, Marsden Law Group (Respondent) File Number(s): 2018/6675 Publication restriction: No Judgment Introduction 1. The applicant has appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Canterbury-Bankstown Council (Council) of a development application (DA 148/2017) for the demolition of existing structures, tree removal and construction of an attached dual occupancy with Torrens Title subdivision into two lots. Each of the dwellings would be two storeys and have four bedrooms with a single garage and further car parking space in the driveway. 2. The appeal was subject to mandatory conciliation on 7 August 2018 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, and the proceedings moved forthwith to hearing. The site 1. The subject land for this development application (DA) is at 115 Hay Street, Ashbury, also described as Lot 101 DP 13650. The site is situated on the western side of Hay Street, opposite its junction with Harmony Street, Ashbury. The site has a frontage of 14.2m to Hay Street and an overall site area of 607.4m2. Currently occupying the site is a single storey dwelling house. 2. The site is zoned R2 – Low Density Residential under to the provisions of Canterbury Local Environmental Plan 2012 ('LEP'). The objectives of the R2 zone are reproduced below: Zone R2 Low Density Residential Objectives of zone • 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. 1. The site falls within the Ashbury Heritage Conservation Area (HCA) pursuant to Schedule 5 of the LEP. The locality, noting Conservation Area designation 1. The Ashbury locality presents as a quiet, relatively low density, residential setting with generous road widths and considerable street tree planting. Part B8 of Canterbury Development Control Plan 2012 (DCP) characterises the Ashbury HCA as follows: "Elements of Ashbury's character include: • Street and subdivision pattern of small to medium sized, predominantly rectangular shaped allotments reflecting each phase of early twentieth century subdivision. • Generally consistent built form, mostly comprising single storey detached houses in Federation, California Bungalow, and other Inter-War housing styles." 1. Council's Statement of Facts and Contentions refers more directly to the Hay Street area noting the inter-war style houses consistent with the heritage character and other developments that are considered to be "out of place with the special character of this area". 2. Lees Park, which includes tennis courts and playing fields and connects to the Cooks River corridor, adjoins to the south. 3. Land adjoining the site to the rear (west), fronts Coorilla Avenue and is zoned R3 Medium Density Residential under the LEP. Issues 1. The core issue with the application is whether the proposed development will have an unreasonable adverse impact on the heritage significance and character of the Ashbury HCA. The Council contends this potential impact is as a consequence of: "inadequate site width, inadequate first floor setback, garages which dominate the streetscape and (inappropriate) bulk and scale of the building". 2. Other concerns on the part of Council are in regard to non-compliance with subdivision controls (minimum site widths) and precedent (related to a perceived increased potential for additional unsympathetic dual occupancy development on non-compliant lots). It will be seen that the proposal is unsatisfactory in regard to the initial question of impact on the heritage significance and character of the Ashbury HCA. This means I do not need to consider the other issues raised by Council. 3. Expert evidence was provided by Mr John Boers, planning and heritage expert for the applicant; Ms S Mitchell, planning expert for the Council; and Ms S Charalambides, heritage expert for the Council. Heritage LEP requirements and DCP provisions 1. The LEP's heritage conservation provisions are at cl 5.10 and are relevantly reproduced below: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows: … (b) to conserve the heritage significance of … heritage conservation areas, including associated fabric, settings and views, … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the … area concerned. 1. Chapter B8 of the DCP provides heritage conservation provisions. The objectives of the heritage provisions are: "B8.1 General Objectives O1 To conserve the environmental heritage of Canterbury (representing the then local government area name – Walsh C). O2 To ensure changes to places of heritage significance are in accordance with the conservation process and design principles. O3 To ensure the significant fabric, materials and finishes, visual setting, landscape elements and fencing of places of heritage significance are conserved. O4 To ensure that new fabric, materials and finishes, visual setting, landscape elements and fencing are complementary to places of heritage significance. O5 To ensure that the location of garages and carports does not detract from heritage significance. O6 Require that development on land in the vicinity of a place of heritage significance is designed in accordance with the conservation process." 1. Chapter B8.4 deals with the Ashbury HCA. At p95, the DCP describes "Elements of Ashbury's character" as including: "• Street and subdivision pattern of small to medium sized, predominantly rectangular shaped allotments reflecting each phase of early twentieth century subdivision. • Generally consistent built form, mostly comprising single storey detached houses in Federation, California Bungalow, and other Inter-War housing styles. Heritage B8 Canterbury Development Control Plan 2012. • Predominance of California Bungalow type houses resulting in many street façades composed of the following architectural elements: - Double or triple fronted gables facing the street; - Semi-enclosed front porch or veranda; - Bay windows; - Asymmetrical façade composition; and - Architectural expression of the base (rendered brick or roughly hewn stone base course), middle (face brick) and top (battening and barge boards). • Houses in a landscaped setting. Gardens have extensive shrub and tree planting with low garden walls and fences, and are generally well maintained. • Extensive street tree planting often typical of the Federation and Inter-War period." 1. The DCP provides a set of objectives for the Ashbury HCA as follows: "B8.4.1 General Objectives for Ashbury Heritage Conservation Area O1 To ensure that development maintains the traditional Federation and Inter-War building character of Ashbury. O2 To ensure that new development respects the traditional character of Ashbury, while facilitating the healthy renewal of the area. O3 To encourage the retention and adaption of housing that contributes to the character of Ashbury. O4 To discourage the demolition of buildings that contribute to the character of Ashbury. O5 To encourage the reversal of previous unsympathetic development and the reinstatement of previous decorative features and materials." The central arguments 1. The Council case is centred on what it argues to be adverse heritage character effects in Ashbury HCA as a consequence of various individual characteristics of the building. Council's Statement of Facts and Contentions itemised various provisions within Section B8.4, the DCP section concerned with heritage, and arguing non-compliance with a number of provisions, including: DCP cl B8.4.5 relating to "Building Expression and Streetscape", cl B8.4.7 ("Roofs and Dormers"), cl B8.4.8 ("Verandas, Porches and Balconies), cl B8.4.9 ("Windows and Doors"), cl B8.4.11 ("Driveways, Garages and Carports") and cl B8.4.12 ("Walls and Fences"). In turn, the proposed development was seen to bring an adverse impact on the heritage significance of the area. 2. The applicant's case presented arguments in response to the particulars raised by Council, that is the series of items referenced above (at [17]). But two other in part related arguments were also inferred. The first is that, in the circumstances of this case, no significant effect on heritage significance of the Ashbury HCA can be anticipated because of: (i) the extent of erosion of character which has already occurred in the immediate locality (from the subject site at No. 115, to the intersection of Hay and Dunstan Street to the north), and (ii) the non-contributory nature of the existing building at 115 Hay Street. The second argument is that dual occupancy development is permissible in the zone and there needs to be some recognition of conflicting policy objectives; and in this setting, the policy weight need not all go the way of the heritage policy, especially noting the objectives of the R2 zone (housing needs). 3. First, I consider the two wider arguments nominated above, then I turn to the individual built form elements. Local character in the site environs and the effect on heritage significance in general 1. The Statement of Facts and Contentions in Reply by the applicant provides a streetscape character analysis, of an area thought by Mr Boers to be the visual catchment of the area in heritage terms. This area was from 115 Hay Street (its southern end) to its intersection of Dunstan Street to the north (linearly about 130m north-south). The argument is put that there is significant inconsistency in the built form in this area and as a consequence: "… this particular section of the Ashbury HCA has a higher 'Visual Absorption Capacity' for some variations to any strict prescriptions of building form, bulk, and design, as would a streetscape with more uniformity and more sensitivity to alteration of its 'character'." 1. Mr Boers compared this setting to Paddington HCA or other parts of the Ashbury HCA where a much greater consistency of built form was evident. In the Joint Expert Report, Mr Boers found: "The proposal is sympathetic to the visual catchment the site, which is relatively heterogeneous in its building style and roof forms." 1. In her closing, Ms Walsh argued that there was not sufficient uniformity; in this area that this proposal would stand out as an aberration, and thus, would not erode the heritage values of the area. 2. While Mr Boers thought the visual catchment (eg as used for character analysis above) was the area of relevance for any heritage impact analysis. Council's experts disagreed. Ms Charalambides commented as follows: "The significance and character of a HCA is the overall effect of built form, siting, setbacks, massing and scale of similar buildings and the established historical pattern of development that is not confined to a particular visual catchment, but rather the entire HCA as this makes up the significance of the HCA." 1. Council evidenced that the non-contributory buildings in the site environs (including the next door property at 113 Hay Street) were, for the most part, approved prior to the implementation of the now heritage controls. It is indicated that the Ashbury HCA was gazetted in Canterbury LEP 2012 (Exhibit 1, p4). Visual evidence was provided during the site view of properties where building alterations had been approved more recently, in the immediate locality, which were argued to meet the DCP's heritage-related requirements. 2. In the broad, I accept the Council's evidence here. While the Ashbury locale has been recognised for its built form heritage for a lot longer, the evidence is that the heritage values have only recently been, in a sense, legislated, through inclusion in a statutory environmental planning instrument. The HCA bounds are defined, and there is no dispute that there are many buildings in the site environs which contribute to the heritage character of the area. Nor was it successfully argued that the inclusion of, this "visual catchment" of the subject site, in the HCA was inappropriate. 3. Then the operative LEP objective is to: "conserve the heritage significance of (the heritage conservation area), including associated fabric, settings and views". 4. I acknowledge that there are also many non-contributory buildings in the environs, but accept the Council's evidence that since stronger controls have been put in place, both capacity and effort to retain heritage integrity has increased as local built form renewal has occurred. 5. A core question for this matter is whether the development (ie the proposed "change") at 115 Hay Street will act to "conserve" the heritage facet of the setting (or detract from it). There are two aspects to this question. The first goes to the contribution, or otherwise of the existing development at 115. The second requires consideration of the individual built form features (considered later). 6. Under the DCP, buildings in the Ashbury HCA can be "graded" in heritage conservation terms into one of the following three categories: 'Contributory', 'Neutral' or 'Non-contributory'. The glossary defines these terms as follows (relevantly): "Contributory building means a building that dates from the key period of significance that has little alteration to its original form, scale, proportions and materials. Previous unsympathetic alterations to the exterior are reversible or can be improved (for example through the use of compatible materials and finishes). Neutral building means: • A building that dates from the key period of significance, with some later alterations, but with the overall form, scale and proportions retained. Previous unsympathetic alterations to the exterior are reversible or can be improved; (for example through the use of compatible materials and finishes), or … Non-contributory building means: • A building that dates from the key period of significance that has considerable later alterations, and no longer retains its original form, scale, proportions or materials. Previous unsympathetic alterations to the exterior are not reversible …" 1. The experts provided evidence on the appropriate grading of the building at 115 Hay Street. Mr Boers said that 115 Hay Street is a non-contributory building within the Ashbury HCA. He referred to "unsympathetic additions" to the front façade and believed greater than 50% of this façade to the streetscape was lost, including the porch. He believed it highly unlikely that restoration would occur in the future. 2. Ms Charalambides and Ms Mitchel said that 115 Hay Street is a neutral building in terms of Ashbury HCA in recognition that it remains "a single dwelling on its lot, has some of the side walls intact, and retains its roof form and scale". 3. There are two tests involved in this "grading" question. In regard to the first, I accept the evidence that the "overall form, scale and proportions" are retained today for 115 Hay Street. The building remains single story and it is not its overall form or scale or proportions that could be seen as taking it to the next level in this "grading" exercise. The second test, of whether previous unsympathetic alterations "are reversible or can be improved", was considered in evidence. I accept the evidence of Ms Charalambides that the building could be improved in regard to its relationship with the HCA with certain nominated changes to front windows and more significant changes to the right hand side of the elevation, and roofing. 4. Overall, I see the existing building sitting neutrally in the Ashbury HCA, and compare it favourably, in these heritage terms, with other nearby more prominent buildings, more likely to catch the eye, which have a negative effect on the integrity of the HCA. Considering the zone objectives and the suggestion of conflicting policy ambitions in the applicable policy 1. Ms Walsh pointed to what I would think to be the more important of the two objectives of the R2 Low Density zone, which is "to provide for the housing needs of the community within a low density residential environment". Ms Walsh also notes that dual occupancy development is permissible in the zone, with the inference that it would be unreasonable and something of an aberration, in policy intention terms, if dual occupancy development were,in effect, not able to be developed at all in the Ashbury HCA due to the DCP controls which apply. The point, as I understood it, was that dual occupancy is a legitimate form of housing which obviously "provides for the needs of the community". It might be argued that it would be commonly more affordable for example than regular dwellings in Ashbury. Ms Walsh particularly cited the parking requirements for dual occupancy developments and how compliance would be problematic in the HCA on its face. 2. The provision of housing in its varying forms to meet community needs is a particularly important challenge in Sydney. However, the heritage-policy overlay for this Ashbury HCA, evident from the LEP, shows the intention to give significant weight to heritage considerations, including when infill housing is proposed. This is followed up in the DCP. DCP Part B8.4 (p94) provide as follows: "… The controls in this section supersede all other controls if there is an inconsistency and the latter controls would result in uncharacteristic or incompatible development in Ashbury." 1. I note that cl B.8.4.16 ("Other Developments") makes clear the particular intention to have other forms of development such as dual occupancies be subject to the controls of the DCP in order to "maintain the character of Ashbury". 2. I accept Council's argument that dual occupancy development is possible, but "was a challenge" as it needed an appropriately sympathetic form. Considering the built form features of the proposal Particulars of two storey form 1. The DCP provides limitations in regard to "acceptable" two storey development at cl B8.4.5 titled "Building Expression and Streetscape". The objectives and controls relevantly include the following: "Objectives O1 To ensure that new buildings, and alterations and additions, are to make a positive contribution to characteristic streetscapes. … Controls C1 Alterations and additions to the existing building are to maintain the appearance of a single storey house from the street. … C3 Acceptable two storey development can be achieved through: (a) Locating rooms within the roof space and using dormers and skylights that are subservient to the main roof form (where visible from the street) to provide natural light and ventilation; (b) Locating the first level to the rear of the building; (c) Locating the first level behind the hipped or gabled roof area of the single storey part of the house (the part of the house facing the street) and not interrupting the roof plane facing the street (up to the central ridge line); (d) Minimising the visibility of two storey walls from the street, by locating them at the rear; and (e) Using transitional roofing to disguise the second storey (transitional roofing is roofing at an intermediate pitch between old and new roof pitches)." 1. Ms Charalambides submits that: "… the first floor setback is considered inadequate as it sits partly forward of the ground floor hipped roof and well forward of where first floor additions are ordinarily accepted on existing bungalows, that being, behind the main roof form of the house. This combined with the large roof form does not allow the first floor to recede and as such reads as an explicit two storey form that is contrary to the prevailing character of the HCA." 1. Mr Boers said the first floor pitched roof form is satisfactory and is visually subservient to the ground floor (given additional setback). In regard to appearance from the street, Mr Boers emphasised that 113 Hay Street would visually block viewlines to the proposal from the north, and more generally was not as prominent as would a building having two storeys up to the front setback. Appearance as a single dwelling 1. According to Council's experts, an important feature of the Ashbury HCA is its detached dwelling character, with no sites in the vicinity comprising attached dwellings. Ms Mitchell argues that: "[The proposal] presents as two dwellings on the land. This is evident when viewing the front elevation, which comprises of two front porches, two front doors, two garage doors and two driveways. As a result, the apparent subdivision pattern will consist of two narrow allotments with a common boundary that aligns with the visible party wall between the front porch of each dwelling." 1. Mr Boers argues that the dual occupancy form would present as one building on the land. "The proposed development would be consistent with the predominant detached character of Ashbury, and so would be consistent with B8.4.1 O2 and B8.4.16 O1 of CDCP 2012. In being an Attached Dual Occupancy, together with its pitched and asymmetrical roof form would further visually integrate the building to present as one building, with side setbacks and separation for the adjoining building at No. 133 Hay Street." Frontage and front setback treatment 1. The Council's experts contend the proposal would impact unreasonably on local character as a consequence of unsympathetic front façade treatment, landscaping and fencing. "The lot width and frontage prevents the ability of the development to incorporate appropriate architectural and landscape elements at ground level that are compatible with the Federation and California Bungalow type houses in the HCA, such as bay windows, semi enclosed front porch or verandah, and extensive shrub and tree planting." The proposal's twin driveways (to the two individual garages) are also seen to contribute to this problem according to Council's experts. In oral evidence, Mr Boers acknowledged that there was commonly more front setback landscaping along Hay Street than proposed here. But there was ample capacity for landscaping. Fenestration and doorways 1. As indicated above, Council is concerned that the two dwellings present with two separate doors on relatively narrow frontages. Ms Charalambides also argues that: "The proposal has a number of windows of various size, location and proportion that disrupts the rhythm and pattern of fenestration as seen from the public domain and that is inconsistent with Clause B8.4.9 of CDCP 2012." 1. Mr Boers takes the view that the windows as proposed are appropriate and necessary, noting the potential for conditions to modify proportions at the front façade. Driveways and garages 1. Ms Mitchell says: "The garages are not adequately setback as the garages are not located a minimum of 1 metre behind the predominant building line, as required by C6, Clause B8.4.11 of CDCP 2012. …Further, the combined width of the two single garages exceeds 3 metres and exceeds 30% of the building width, as required by C9, Clause B8.4.11 of CDCP 2012. The garages dominate the front façade and are not sympathetic to the surrounding development within the Ashbury HCA." Council's experts calculate the 6m (approx) total width of garages to be some 50.7% of the 11.835m overall building width. The width of the driveway also reduces opportunity for fencing and gardens, characteristic features of the locality. 1. Mr Boers indicates that the garages would be largely visually screened by 113 Hay Street. He also suggested that the proposal complies with the garage controls at cl B8.4.11, as the internal dimensions of the two individual garages for the two dual occupancy units are each less than 3m in their internal dimensions. Findings 1. Clause 5.10 of the LEP has the objective of conserving the heritage significance of the Ashbury HCA. In this matter, the Court is required to consider the effect of the proposed development on the heritage significance of this HCA. Considering an "effect" requires a "before" and "after" analysis. The "before" setting does include some considerable erosion of heritage values in the immediate site environs, but there is also much evidence of an intact setting including sympathetic renewal. The site environs is legitimately part of the HCA and I accept the evidence from Council that since the gazettal of the LEP, and its additional heritage powers, efforts to conserve the heritage significance of Ashbury have been more effective. The home at 115 Hay Street, itself, has been altered. However, today it provides only a modest and neutral contribution in heritage terms. 2. What is proposed (the "after") is much less modest in its built form and scale. I agree with Council that it is at odds with the DCP in regard to its building expression at the streetscape. The DCP is seeking a "positive contribution" from new buildings in heritage terms (cl B8.4.5 Objective O1). This requires buildings to maintain an appearance of the "traditional character of Ashbury": single storey, single detached dwellings with front garden settings. The DCP introduces ways that new development including increases to scale might occur without prejudicing the heritage significance of the heritage conservation area. 3. I do not think the proposal has given proper consideration to these controls and agree with Council that it would present as "two front porches, two front doors, two garage doors and two driveways" on two quite narrow allotments, with inadequate opportunity for front gardens. It is also clear that no substantive sensitivity has been given to presenting a single storey appearance to the street. 4. I note that Ms Walsh referenced s 4.15(3A) of the EPA Act and its provisions regarding the flexible application of DCP standards. The pertinent provisions are at subs (b) and can be paraphrased as follows: [If the applicable development control plan] provisions set standards with respect to an aspect of the development and the development application does not comply with those standards — [the consent authority] is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development. 1. In coming to my conclusion, I have considered this provision. In general, I find the proposal does not offer alternatives that satisfy the various DCP objectives including those listed in the body of this judgment. The argument that the proposed development would be screened by the existing unsympathetic development at 113 Hay Street is pertinent here. This argument has some, but insufficient, weight. It is clear that the new development would be quite prominent from the eastern side of Hay Street and when driving or walking along Harmony Street and for those visiting the Lees Park environs. 2. I have also noted Ms Walsh's reference to Joukhador v Canterbury City Council [2015] NSWLEC 1027 (Joukhador). The contention in regard to non-compliance with subdivision minimum widths is a key point of commonality between the case before me and Joukhador and was the principal reason for the reference I believe. As indicated above, the question of minimum subdivision width has not been determinative in my judgement in this matter. 3. The proposal is antipathetic to the objective of conserving the heritage significance of the Ashbury HCA. The potential character impacts are significant to the extent that the development should not be approved. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Development Application No. DA 148/2017 for a dual occupancy development and Torrens Title subdivision at 115 Hay Street, Ashbury is refused. ___________ P Walsh 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: 25 September 2018