Innovative Building Design Pty Llimited v Sutherland Shire Council [2006] NSWLEC 380 (30 June 2006)

Last Updated: 11 July 2006

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Innovative Building Design Pty Llimited v Sutherland Shire Council [2006] NSWLEC 380


PARTIES:
APPLICANT
Innovative Building Design Pty Limited

RESPONDENT
Sutherland Shire Council


CASE NUMBER: 11533 of 2005


CATCH WORDS: Development Application


LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000

CORAM: Brown C

DATES OF HEARING: 15, 16/06/06

DECISION DATE: 30/06/2006


LEGAL REPRESENTATIVES

APPLICANT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

RESPONDENT
Dr S Berveling, barrister
SOLICITORS
Sutherland Shire Council



JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Brown C


30 June 2006


11533 of 2005 Innovative Building Design Pty Limited v Sutherland Shire Council


JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 05/0884 by Sutherland Shire Council (the council) for alterations and additions to an existing heritage item and the construction of three attached dwellings to form a cluster housing development at 27 - 31 Smarts Crescent, Burraneer (the subject site).

The subject site and surrounding area
2 The subject site is Lot 4 in DP 19017. It has a street frontage of 44.655 metres, side boundaries of 56.13 and 54.00 metres and a rear boundary of 56.215 metres giving a total site area of 2883 square metres. The site contains clusters of trees, mostly along the northern and eastern borders.
An existing single storey weatherboard and fibro dwelling identified as a heritage item is located on the site.

3 Development within the general area comprises a mix of single and double storey detached dwelling houses of varying architectural styles and sizes. Almost directly opposite site is the Mount Vincent Aged Care Home.

The proposal
4 The proposal provides for alterations and additions to an existing heritage dwelling known as "Karbethong" (the heritage item) to create a three-bedroom residence and double garage. In addition, the construction of three new detached dwellings is proposed. The proposal also provides for the strata subdivision of the four dwellings.

Relevant planning controls
5 The site is within the 2(e2) Residential zone of Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The proposed use is permissible with consent within this zone. Objectives of the zone are found in the development control table for the zone in Part 3. The site is also located within a Foreshore Scenic Protection Area.

6 Clause 14(2) states:

(2) When determining a development application required by this clause, the consent authority:
(a) must consider the effect of the development on the heritage significance of the heritage item and its setting, and
(b) is to consider any conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting.

7 Clause 15 states:

Consent may be granted to development of a site of a heritage item which is a building, except a boat shed or other structure ancillary to a dwelling, regardless of any other provision of this plan, provided the consent authority is satisfied that:
(a) the proposed development would not adversely affect the heritage significance of the heritage item, and
(b) the proposed development would have little or no adverse effect on the amenity of the area, and
(c) conservation of the item will be carried out to the consent authority is satisfaction.

8 "Karbethong" is identified as a heritage item (Item No. B270) in Schedule 2 to LEP 2000.

9 Clause 19 provides requirements for development in a Foreshore Scenic Protection Area, cl 30 provides special considerations for the residential zones, cl 34 provides requirements for height, cl 36 provides requirements for minimum landscaped areas, cl 37 provides requirements for minimum allotment sizes in residential zones and cl 38 provides requirements for minimum allotment dimensions.

10 Development Control Plan - Cluster Housing (the DCP) applies. Clause 10 provides objectives and controls for density, cl 11 provides objectives and controls for site area, cl 12 provides objectives and controls for height, cl 16 provides objectives for landscaping, cl 17 provides objectives and controls for common open space and cl 21 provides objectives and controls for setbacks to adjoining boundaries.

11 Draft Sutherland Shire Local Environmental Plan 2004 (the draft LEP) applies. The most recent evidence on the status of the draft LEP was contained in a fax received by the council 23 January 2006 from the Minister for Planning. It states that the draft LEP is to be changed to address matters of State and regional significance. General areas of change were identified in the document, as was the need for council officer assistance from the council. There was no timetable for completion identified in the document, no evidence on how the changes would relate to the proposal or even whether the council had responded to the Ministers letter and process of changing the draft LEP had started. On this basis, the draft LEP should not be considered imminent or certain and consequently should not be given any weight in the proceedings.

The issues
12 Following the submission of amended plans, the active issues can be grouped into the following areas:

1) whether the proposed development unacceptably effects the heritage significance of the heritage item and its setting, and if not,

2) whether the proposed development gains the benefit of cl 15 of LEP 2000, and if not,

3) whether the proposed development is appropriately classified as “cluster housing” or “townhouse” under LEP 2000, and if classified as “cluster housing”,

4) whether the SEPP 1 objections to the minimum allotment size and minimum site area per dwelling development standard and uppermost ceiling height in LEP 2000 are well founded.

The evidence
13 A joint report was prepared on the heritage issues by Mr David Logan on behalf of the council and Mr Sean Johnson on behalf of the applicant.

14 A joint report was prepared on the town planning issues by Ms Emma Bell, on behalf of the council and Mr David Crane on behalf of the applicant.

15 The following the residents provided evidence on-site:

Ms Toni Ford of 22 Smarts Crescent,
Ms Wendy Jones of 35 Smarts Crescent,
Mr Heaume of 33 Smarts Crescent,
Mr Richardson of 24 Smarts Crescent,
Mr Geoffrey Fraser of 18 Smarts Crescent,
Mr Gary Bradshaw of 25 Smarts Crescent,
Mr Ben Fairfax of 12 Wylmar Avenue, and
Mr Weston of 10 Wylmar Avenue.

16 The concerns expressed by the local residents relate to:

Incompatibility with the existing heritage item,
non-compliance with the council planning controls,
out of character with the area,
additional on street parking,
unacceptable impacts of construction traffic,
loss of views,
overdevelopment of the site,
overbearing appearance and inadequate setbacks at the rear and
loss of privacy and amenity.

17 These issues are addressed as part of the consideration of the issues raised by the council.

Impacts on the heritage significance of the heritage item and its setting
The heritage significance of the item and it’s setting
18 Mr Johnson provided the Statement of Heritage Impact for the heritage item. The Significance Assessment, based on the NSW Heritage Office Criterion, states:

Karbethong provides evidence of the development of the Gunnamatta Bay Estate, part of the Holt Sutherland Estate. The location and orientation of the house in relation to the water and its "holiday home" character are representative of the early 20th century settlement and character of the area. This demonstrates the reliance of local residents on the waterway for transport and recreation as is shown by the documentary evidence for a jetty associated with the house (Criterion A).

Although Karbethong is not located within the Smarts Estate subdivision which created Smarts Crescent, the house is associated with the Smart family. This connection could be the subject of further research (Criterion B).

Karbethong is an attractive component of the local streetscape, reminiscent of the time when this area was sparsely occupied with holiday homes. Its main aesthetic value lies in the form and scale of the hipped roof and enveloping verandah. Reopening the verandah would improve its appearance (Criterion C).

Karbethong is held in regard by the local community as demonstrated by its inclusion in the Sutherland Shire LEP Heritage Schedule (Criterion D).

The site has minimal research potential (Criterion E).

Karbethong is an unusual example of an early 20th century cottage, possibly a prefabricated holiday home, with earlier style joinery and a Queensland influence (Criterion F and G).

19 I did not understand Mr Logan to disagree with the Significance Assessment prepared by Mr Johnson.

20 Clause 14(2) requires the Court to consider the effect of the development on the heritage significance of firstly, the heritage item and secondly it’s setting.

The heritage item
21 The proposal provides for the renovation of the heritage item, the construction of a plunge pool, the reinstatement of a formal garden between the heritage item and Smarts Crescent and the construction of two separate modules joined by a breezeway from the heritage item. The first module contains two bedrooms and a first floor loft and the second module contains a carport and lock-up garage with access from Smarts Crescent.

22 There was agreement between Mr Johnson and Mr Logan that the proposed renovation of the heritage item and the additional building work proposed was an appropriate conservation response to the heritage item although Mr Logan qualified his support by stating it was based on the works in isolation from the proposed three additional dwellings.

The setting of the heritage item
23 Mr Johnson and Mr Logan disagreed on the second matter; being the impact of the proposed development on the setting of the heritage item. Mr Johnson states that the visual connections between the heritage item and Gunnamatta Bay are the only remaining views of significance. If the existing water views available from the northern end of the verandah remained, once the development is completed, this would adequately compensate for the loss of views from the front door, which is no more than a glimpse between adjacent development and vegetation. Mr Johnson also states that the heritage item now has a strong association with Smarts Crescent following the construction of the road around 75 years ago.

24 Mr Johnson further states that the architectural treatment of the new dwellings is compatible with the heritage item. The apparent height of the proposed dwellings are minimised because they are set at the lowest possible level on the site and have low skillion roofs. The new dwellings are visually distinctive from the heritage item by virtue of the contemporary design and their massing and scale are broken down by the use of a range of different materials and finishes.

25 Mr Logan states that any further loss of visual connection between the house and Gunnamatta Bay is an adverse heritage impact given the significance of the item and its historic association with the water. He further states that the general outlook from the dwelling towards the east, and in particular the sense of spaciousness, would be adversely affected by the development.

26 Mr Logan saw the close proximity of development on three sides of the heritage item and the height and architectural treatment of the new dwellings as being unacceptable. In his opinion, the new dwellings would present as almost continuous wall around of the northern and eastern sides of the heritage item. The heritage item is relatively small in scale due to its lower eaves height and hipped roof form and by contrast, each of new dwellings has a larger footprint and would appear far bulkier than the existing dwelling due to the predominantly two-storey height and skillion roof form. Mr Logan acknowledges that the architectural treatment, per se, does not impact on the setting of the heritage item but rather the combined effect of the bulk, proximity, visual continuity and architectural treatment. If the proposed dwelling (Dwelling 1) at the Smarts Crescent frontage was removed, the effect of the enclosure of the heritage item would not exist and the remaining dwellings (Dwellings 2 and 3) would be acceptable. The removal of this dwelling would also reinstate the relationship between the heritage item and Gunnamatta Bay.

Findings
27 In balancing the different evidence from Mr Johnson and Mr Logan, I generally prefer the evidence of Mr Logan although not in total. I accept that the association of the dwelling to Gunnamatta Bay is an association that should be maintained although not necessarily to the extent suggested by Mr Logan. I do however agree that the visual association with Gunnamatta Bay should be maintained and maximised by any development.

28 I also agree with Mr Johnson that the direct association with the water has been long lost through the subdivision of land around the subject site and the construction of numerous dwellings and also the construction of Smarts Crescent around 1939. For this reason, any effect on the heritage significance of the heritage item must be additionally considered from Smarts Crescent.

29 I agree with the general thrust of Mr Logan’s evidence that the proposed dwellings have an unacceptable impact on the significance of the heritage item because of the proximity of development on three sides of the heritage item. I acknowledge that attempts have been made to reduce the height of the proposed new dwellings however, in my view, the unacceptable effect on the heritage item centres largely on the location and form of Dwelling 1.

30 Dwelling 1 is a predominantly two-storey dwelling setback 7.5 metres from Smarts Crescent. The dwelling presents a two-storey elevation at the setback. The heritage item is a single-storey dwelling and setback 14.7 metres from the enclosed verandah to Smarts Crescent. The separation distance between Dwelling 1 and the heritage item is 10 metres.

31 In accepting Mr Johnson's proposition that the heritage item has an association with Smarts Crescent (in addition to its association with Gunnamatta Bay) because of the length of time the street has been in existence, then in my view, Dwelling 1 clearly effects on the heritage significance of the heritage item when viewed from Smarts Crescent. I agree with Mr Johnson and Mr Logan that the contemporary design of the dwellings is not an issue however I do not accept that the proposed landscaping or the range of materials proposed for the dwelling provides any effective ameliorative measures against the presence of the dwelling in streetscape and the unacceptable effect on the character of the area.

32 When viewed from Smarts Crescent, I find that Dwelling 1 will visually dominate the heritage item and adversely effect the heritage significance of the heritage item and it’s setting.

33 In coming to this conclusion, I am not persuaded by Mr Logan's evidence that the area to the east of the heritage item should remain undeveloped in order to protect the significance of the heritage item. Theoretically, there is no reason why a modest single storey dwelling with an increased setback to Smarts Crescent that relates more positively to the heritage item could not be designed that would not effect the significance of the heritage item. It would be less overpowering in the streetscape and have a more positive impact on the character of the area. A single storey dwelling would also provide greater visual links to Gunnamatta Bay, a better perception of separation from the heritage item and retain a greater level of views over the site.

34 Based on the consideration required by cl 14(2), I find the effect of the development on the heritage significance of the heritage item and its setting is unacceptable and it follows that the appeal must be dismissed. For completeness, I will briefly deal with the other major issues.

Clause 15
35 Clause 15 provides the opportunity for sites containing a heritage item to be developed irrespective of any planning controls provided that the matters in subsections (a), (b) and (c) are satisfied. To gain the benefit of the clause, all subsections must be satisfied.

(a) the proposed development would not adversely affect the heritage significance of the heritage item, and
36 For reasons in the preceding paragraphs, I find that the proposed development does not satisfy the requirements in cl 15(a) and as such the provisions in cl 15 are not available.

(b) the proposed development would have little or no adverse effect on the amenity of the area, and
37 The Statement of Issues indicates that the proposal has an adverse effect on the amenity of the area in relation to streetscape and character of the area, lot size and width and density, floor space ratio (FSR), landscaping and impacts on neighbours, particularly the visual and aural privacy impacts and bulk and scale impacts on properties backing onto the subject site in Wylmar Avenue. Streetscape and character of the area are addressed in the preceding paragraphs.

Lot size and width and density
38 Ms Bell states that the numerical compliance with the lot area requirements is not achieved as the site has an area of 2883 square metres whereas cl 37 requires a minimum site area of 3000 square metres for 3 dwellings or more. Also, and with a minimum lot size of 850 square metres required by cl 37, the potential yield is only 3.4 dwellings. Based on the amendment to Strata Title subdivision the dwellings, Ms Bell states that the proposed development would comply with the requirements for minimum lot size and minimum allotment dimensions but concludes that the form of development would not be typical of residential development permissible in the 2(e2) zone.

39 Mr Crane relies on the heritage incentive provisions in cl 15 that provide for consent to be granted regardless of any other provision of this plan.

In his opinion, the proposal would have little or no adverse effect on the amenity of the area so compliance is not necessary with the minimum lot size and minimum allotment dimensions in LEP 2000.

Floor space ratio
40 Based on the evidence of Mr Crane, the overall FSR of the buildings on the site is 0.35: 1 which satisfies the requirement of 0.4:1 1 in cl 35. I did not understand the council to disagree with Mr Crane's calculations.

Landscaped area
41 Based on the evidence of Mr Crane, the landscaped area of the site at 55.25% will marginally exceed the 55% requirement in cl 36. I did not understand the council to disagree with Mr Crane's calculations.

Impacts on neighbours
42 Visual and aural privacy was a matter raised by Mr Fairfax and Mr Weston as was the bulk of Dwellings 2 and 3 when viewed from their rear yards. Ms Bell and Mr Crane agreed that potential overlooking from the first floor areas of Dwellings 2 and 3 could be addressed through screening. Ms Bell maintained that the separation between the dwellings was unsatisfactory. Also, the location of the dwellings adversely impacted upon the amenity of the neighbouring dwellings with regard to bulk and scale due to the two-storey components of the dwellings and their proximity to the rear boundary. Mr Crane disagreed with the conclusions of Ms Bell.

(c) conservation of the item will be carried out to the consent authority is satisfaction.
43 Mr Johnson and Mr Logan agreed that the conservation works proposed for the heritage item were appropriate.

Findings
44 In considering a development application that relies on cl 15, the Court is to ignore the development standards in LEP 2000, subject to subsections (a), (b) and (c). Ms Bell’s evidence indicates that the proposal would not be typical of residential development permissible in the 2(e2) zone based on the non-compliance with development standards in LEP 2000. I do not accept that this is the appropriate test for a development application relying on cl 15. The clause simply calls for a merit-based assessment of any potential amenity impacts. For an application to gain the benefit of the clause, any amenity impacts must have little or no adverse effect on the amenity of the area.

45 For example, it could be validly argued that a 4-storey development relying on cl 15(b), would have an adverse effect on the amenity of the area by way of its height but it could not be validly argued that it would have an adverse effect on the amenity of the area because it breached the height development standard. The Court must assume that cl 15 has a purpose. To accept the approach adopted by Ms Bell would be to largely ignore the purpose of cl 15 by providing incentives for the conservation of heritage items and redevelopment of the sites on which they are located without reference to the planning controls that would normally apply.

46 In this case, I find that the proposed development would not satisfy cl 15(b) for a number of reasons. Firstly, the proposed development does not provide an adequate level of protection from overlooking at the ground level. The evidence was inconclusive on the levels between the courtyards of Dwellings 2 and 3 and the adjoining properties in Wylmar Avenue. I do not accept that overlooking at the ground level should need to be addressed through overly high boundary fencing that creates the impression of enclosure within a rear yard. A minimum rear setback of 6 metres should also be provided in conjunction with a detailed landscape plan that will provide a level of screening.

47 Secondly, rooms that attract relatively high levels of the use, such as the casual living area for Dwelling 2 and the living area for Dwelling 3 should not be located on the second level or alternatively provided with no windows that overlook adjoining properties. I accept that screening of the bedroom windows on this level will provide an adequate level of protection from overlooking.

48 On the issue of perceived bulk of from the properties in Wylmar Avenue, I am not convinced that the combined length of Dwelling 2 and Dwelling 3 is a significant issue because of the proposed separation but more importantly because it will not be overly noticeable as it occurs at ground level and will be screened by boundary fencing and proposed landscaping.

49 I am also not convinced that the two-storey components of Dwelling 2 and Dwelling 3 create such an unacceptable visual impact that would warrant further amendment. The two-storey component of each dwelling occupies only a relatively small length along the rear boundary, with the majority of the two dwellings being single storey. I acknowledge however that even a part two-storey dwelling in this location would not normally be expected however the existence of the heritage item and the provisions of cl 15 provide a different assessment regime than would normally be expected.

50 The concern over aural privacy is also not a matter that would lead to the refusal or amendment of the application. While additional noise is likely to be generated by the proposed development than currently exists, any noise would likely be consistent with the residential nature of the area.

51 The impact of construction traffic would also not be a matter that would lead to the refusal or amendment of the application.

Other issues
52 Because of the findings in the previous paragraphs that the proposed development was not acceptable, it is not necessary to deal with the issues relating to whether the proposed development is appropriately classified as “cluster housing” or “townhouse” and whether the SEPP 1 objections to the minimum allotment size and minimum site area per dwelling development standard and uppermost ceiling height in LEP 2000 are well founded.


Orders
53 For reasons in the preceding paragraphs the Orders of the Court are:

1) The appeal is dismissed.

2) DA 05/0884 for alterations and additions to an existing heritage item and the construction of three attached dwellings to form a cluster housing development at 27 - 31 Smarts Crescent, Burraneer is refused.

3) The exhibits are returned.







______________
G T Brown
Commissioner of the Court