Land and Environment Court New South Wales

• Medium Neutral Citation: Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187
• Hearing dates: 18 and 19 September 2013
• Decision date: 04 October 2013
• Jurisdiction: Class 1
• Before: Moore SC; Sullivan AC

Decision

See (72) for directions that will lead to the appeal being upheld and the granting of development consent for additions and alterations to 7 De Milhau Road, Hunters Hill

• Catchwords: PLANNING PRINCIPLE: Consideration of the planning principle in Edgar Allan Planning Pty Ltd v Woollahra Municipal Council; PLANNING PRINCIPLE: New principle for determining if a development application should be described as being for additions and alterations rather than a new development; Heritage impact
• Legislation Cited: State Environment Planning Policy No 1; Hunters Hill Local Environmental Plan No 1; Hunters Hill Local Environmental Plan 2013
• Cases Cited: Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1
• Category: Principal judgment
• Parties: J Coorey (Applicant); Municipality of Hunters Hill (Respondent)
• Representation: Mr A Pickles, barrister (Applicant); Mr J Cole, solicitor (Respondent); Maclarens Lawyers (Applicant); HWL Ebsworth (Respondent)
• File Number(s): 10486 of 2013

Judgment

1 COMMISSIONERS: Many of the early structures of Hunters Hill dating from the early to mid-19th century have been retained although, as is the case with the sandstone cottage that is the subject of these proceedings, many have been modified in the more recent past.

2 In these proceedings, a small, four-room Georgian-style stone cottage at 7 De Milhau Road comprises the listed heritage item on the site of this appeal. The cottage is known as Waterside. An extensive addition was constructed to the heritage item in the 1970s.

3 The present development proposal seeks to remove that more recent extension and replace it with new structures that would differ in both style and scale from that extension. The 1970s extension was constructed in sandstone and timber in a fashion apparently thought, at the time, to be sympathetic to and in keeping with the heritage structure. Those additions were a single-level structure mainly behind and to the side of the heritage item.

4 That for which approval is sought in this development application is a distinctly different structure both in form and materials so that the heritage item, from public viewing points in De Milhau Road, will be read in a different (and, as a result of the proposal, a more open) fashion than is presently able to be observed from the public domain.

5 Development application 2013/1002 describes the development proposal as alterations and additions to existing dwelling, including first-floor addition, single-storey cabana, barbecue shelter, pergola and front fence. The appropriateness of this description in light of the planning principle in Edgar Allan Planning Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 790; (2006) 150 LGERA 1 is discussed later in this decision, particularly in the context of whether or not that planning principle should be replaced.

6 The development application was lodged on 4 January 2013 with Hunters Hill Municipal Council (the Council) and, in response to its notification, four submissions objecting to the proposal were received by the Council. On 28 May 2013, the Council refused the application for a variety of reasons, virtually all of which have been resolved as a consequence of the collaborative work undertaken by the heritage advisers and legal representatives of the parties. That collaborative and cooperative process continued throughout the hearing so that, in effect, only two comparatively minor design matters remained for our determination.

7 It is fair to say that the application has undergone significant evolution in design and, to a lesser extent, in materials and finishes during the course of that collaborative process. It is not necessary, in our view, to traverse the totality of the changes that have now taken place in the proposed design compared to that which was originally submitted for the Council's consideration - save to observe that we are satisfied that the various changes that have evolved through that process, when coupled with our determination of the two remaining issues, will lead to an acceptable redevelopment of the site in a fashion that will not compromise the heritage item further. The finalised design will, indeed, provided a more appropriate heritage context for the viewing of the item from locations in the public domain in De Milhau Road.

8 We are also satisfied that, in the form that the final approval will take, the proposal will provide appropriate protection to neighbouring properties and, indeed, to a modest extent, provide an enhanced view corridor toward the nearby waterway from at least one of those properties.

9 We express our appreciation to the cooperative approach taken by the legal representatives and the heritage advisers during the course of the court process because, even though the matter has proceeded through a contested hearing, virtually all the matters that had remained in contention between the Council and the applicant at the commencement of the site inspection were able to be resolved during the course of the site inspection and the subsequent hearing.

Waterside cottage

10 To enable an understanding of some of that which follows, it is appropriate to incorporate in this decision two of the photographs that were in evidence. The first, a photograph taken in approximately 1948, shows the cottage when viewed from the roadway to its east. The second, a contemporary photograph, is taken from the front of the cottage to its south, looking toward its original main entrance, an entrance now not used functionally for that purpose.

11 The first photograph is taken from the Statement of Evidence of Mr Patch, the Council's Heritage Consultant, and the second from the Statement of Heritage Impact of September 2012 prepared in support of the development application. This document was prepared by Mr Lonergan, the architect and heritage consultant for the applicant.

12 There are a number of observations that should be made concerning these photographs before turning to consideration of the issues that remain in the proceedings; the review of the planning principle in Edgar Allan Planning; and how the proceedings are to be resolved.

13 The 1948 photograph shows two matters of note for the purposes of these proceedings. First, in the roof plane immediately observable above the veranda in the photograph, there is no dormer structure in that roof plane. Second, although the photograph depicts a veranda, Mr Patch and Mr Lonergan agreed that they could not determine whether this veranda was an original feature of the house. They also agreed that it ought not be reinstated as part of this proposed development as its reconstruction would be conjectural to some extent and that the cottage had acquired, for the locals, heritage value without its veranda.

14 With respect to the contemporary photograph, a number of additional, relevant observations should be made.

15 First, the pointing to the mortar of the dimensioned sandstone blocks of which the cottage is constructed is comparatively modern and is a hard mortar overlaying and infilling gaps in the original soft lime mortar that was used in the original construction. This pointing is proposed to be removed as part of the sandstone restoration to be undertaken and replaced with contemporary soft mortar.

16 Second, the very large light fittings on either side of the door (of which there are a significant number onsite at other locations - both freestanding and on the building) are proposed to be removed as it is agreed that they are entirely unsympathetic and out of character with the heritage item.

17 Third, the fascia and similar detail, including the guttering, is to be removed and replaced with fittings more in keeping with the era of the structure.

18 Finally, the flatroofed nature of the existing dormer in the southern roof plane can be observed. The retention of this dormer, as proposed by the applicant (albeit in modified form) is one of the two design issues remaining for our determination.

The remaining issues

19 There remain three matters that require our determination. Two of them arise as matters of design for the proposed redevelopment, these being:

• Whether or not the dormer in the southern roof plane should be removed and the roof plane reinstated in a fashion consistent with the 1948 photograph or whether a dormer should be permitted to remain, albeit in modified form, for amenity reasons for the bedroom in the roof space; and

• Whether the present plantings of Callistemon trees in the small soil nature strip between the northern wall on the site and the kerb of Centenary Avenue, the street to the north, should be retained but pruned to a lower height or whether they should be removed and replaced with a species of Camellia.

20 In addition, we expressed our concern to Mr Pickles, barrister for the applicant, and Mr Cole, solicitor for the Council, that the description of the proposal in the development application as being for alterations and additions to the existing dwelling was not consistent with the mathematical and formulaic approach set out in the planning principle in Edgar Allan Planning.

21 We invited Mr Pickles and Mr Cole to address us on whether or not the planning principle remained appropriate and whether or not, on the facts and circumstances of this proposed development, that appellation was appropriate to be adopted for the works proposed to be undertaken on the site.

22 Although we discuss the planning principle in more detail later, we are indebted to them both for the thoughtful submissions that they made on this point as they have assisted us in reaching the conclusion that:

• The prescriptive nature of the present planning principle was inappropriate to be retained; and
• It was appropriate to adopt a replacement planning principle that would provide broad guidance through a process-oriented structure for considering whether a proposed development should be characterised as additions and/or alterations or whether it should be characterised as being for an entirely new structure.

The planning controls

23 Waterside is identified in both the Local Environmental Plan that applied at the time the application was lodged (Hunters Hill Local Environmental Plan No 1) and in the replacement Local Environmental Plan, the Hunters Hill Local Environmental Plan 2013 (a replacement plan based on the standard instrument template that has subsequently come into force) as a listed item of local heritage.

24 There is no material difference between the two plans in either the terms of the listings or in the applicable controls arising.

25 There is, relevant to the formal determination of the proceedings, a development standard that arises concerning the area of soft landscaped surface as a proportion of the site. That standard, requiring 60% of the site to be soft landscaping, remains the subject of a calculation to determine whether or not compliance is achieved as a consequence of the continued evolution of the plans.

26 However, it is the agreed position of Mr Patch and Mr Lonergan that, if there were to be any non-compliance, the increase in soft landscaping area that has been achieved by the removal of extensive areas of sandstone paving is positive and desirable. If an objection to compliance with the development standard pursuant to State Environment Planning Policy No 1 is required, they agree that it is appropriate that such objection be sustained and that the non-compliance, if it exists, should not act as an impediment to approval of the application.

The dormer window in the southern roof plane

27 As can be seen from the photographs reproduced earlier, the current dormer structure in the southern roof plane is an intrusive element in the view from the public domain of the heritage item. It is, the experts agreed, an item that would be appropriate to be deleted (exhibit 3, marked up plans).

28 However, the applicant wishes to retain a dormer, although accepting that a more appropriate form could be adopted, in order to provide appropriate cross-ventilation for the room in the roof space.

29 At the present time, the dormer in the southern roof plane together with a larger dormer in the northern roof plane provide opportunities for that crossventilation. It is not suggested that the northern dormer should be removed although it is to be replaced, in a more sympathetic form than that which currently exists.

30 Opportunities exist for the provision of cross-ventilation to this room by virtue of there being an openable skylight in the ensuite bathroom to the bedroom (which skylight is in the western roof plane). This skylight, when coupled with the fenestration that will exist in the northern dormer will provide a degree of cross-ventilation if the south roof plane dormer is to be removed.

31 In addition, as was observed during the course of the site inspection, there is a further skylight in the northern roof plane above the staircase to the room in the roof that is capable of being returned to functional openability - thus providing further opportunity for crossventilation.

32 Although we accept that removal of the dormer in the southern roof plane will lessen, to some extent, opportunities for cross-ventilation of the room in the roof, we are satisfied that the heritage perspective benefits of reinstating the roof plane, without a dormer, significantly outweigh the limited reduction in cross-ventilation that will result from doing so.

33 In our consideration of whether these additions and alterations should be permitted, the increased opportunity for an enhancement of the nature of the viewing of the heritage item from the public domain in De Milhau Road is a significant positive element in our accepting that the overall nature of the scheme proposed is appropriate.

34 As a consequence, for the overall scheme to be appropriate, we are of the view that the agreed position with the heritage experts, namely that the dormer in the southern roof plane could be deleted, should be required.

Plantings adjacent to Centenary Avenue

35 During the course of the site inspection, we visited a residence on the northern side of Centenary Avenue directly opposite the proposed new structures. There were two major concerns expressed by this resident.

36 The first was that the nature of the cedar-detailed treatment to the northern facade of the upper level of the new structure would be dark and dominant and, second, that there would be a significant impact on the limited existing view corridor from the balcony of this property to the waterway beyond.

37 We shared the concern about the dark nature of the cedar elements on the northern facade. However, during the course of the subsequent in-court evidence, Mr Lonergan indicated that the cedar could be bleached to anticipate and bring forward what would be the expected long-term weathering effects of the raw timber. He proposed that this be required.

38 We are satisfied that doing so will adequately address this concern. We are also satisfied that subject to the comments below concerning plantings in the Council's kerbside nature strip along Centenary Avenue, there will be no adverse impact on the view corridor to the water from this property. Indeed, the removal of vegetation along the eastern street frontage of the site (as part of opening a view from that street to the heritage item) will have the effect of enhancing the view corridor rather than adversely impacting on it.

39 At the present time, the view from this location is, to considerable extent, interrupted by a number of Callistemon some 5 m or so in height that form part of the vegetation in the nature strip immediately to the north of the stone wall on the property boundary along Centenary Avenue. These Callistemons provide limited screening of the existing structure but, as Mr Cole observed during his submissions, that screening is primarily provided by a well-established Wisteria vine that climbs on those Callistemons rather than from the Callistemons themselves. The Callistemons are rather spindly in their trunk and branch structure.

40 We raised, with the Council's arborist, the question of whether planting of Camellias in this space might be possible and appropriate for both screening purposes and to complement the Camellias that are to be retained within the site along this boundary. In this context, it is appropriate to note that a large tree, toward the eastern end of this frontage of the site but in the Council's nature strip (apparently a Pittosporum), is to be retained.

41 The Wisteria is interfering with the stone walling on the property and is proposed to be removed. We are satisfied that the removal of the Wisteria will significantly diminish (and might, effectively, almost entirely remove) the screening value of the Callistemons.

42 Removing the upper elements of the Callistemons would encourage bushing at the top but would not provide any stimulus to lateral growth lower down their trunks and would not have any increased screening effect. Although another resident opposite to the north (who was unable to be present during the course of the site inspection) has made a submission that these trees should be retained, we are unable to accept that as a desirable proposition.

43 We are satisfied that, with the removal of the Callistemons and appropriate soil treatment of the Council's kerbside nature strip as a precursor to the planting of new Camellias of a species that will grow to a limited height of some 3 m (as the Council's arborist has advised is possible to be selected and provided for in a condition of consent) appropriate and effective screening can be provided along this element of the proposed structure in a fashion that will provide:

• Better screening than is currently available;
• Enhanced view lines from the first of the residences described above (as the upper levels of the Callistemons will be removed from interfering with that view); and
• Still provide appropriate light into the fenestration of the new structure to be constructed on the site.

44 As a consequence, the Conditions of Consent will need to reflect the removal of the Callistemons to be followed by replanting of an appropriately specified species of Camellia in the Council's kerbside nature strip after the necessary soil preparation has been undertaken for this purpose.

The planning principles of the Court

45 The Land and Environment Court's website describes planning principles as being statements of "a desirable outcome from a chain of reasoning aimed at reaching, or a list of appropriate matters to be considered in making, a planning decision". The first planning principle was published in 2003 and there have been over 40 principles published since that time.

46 Planning principles fall into two distinct classes. The first class, being the majority of the planning principles published to date, are those that are process related (in that they set out what matters are appropriate to be considered in undertaking an assessment of and reaching a decision about a particular planning concern). The minority of the planning principles are those that are prescriptive (in that they attempt to define what should be the outcome of a reasoning process concerning a particular planning concern).

47 In recent years, the Commissioners of the Court (who collegially develop planning principles) have ceased to adopt any further prescriptive planning principles.

48 Indeed, in appropriate cases, prescriptive planning principles may be reconsidered and, if appropriate, replaced with or transmuted into process ones as it is now considered that process planning principles are the appropriate way to approach such topics.

49 An example of this is the replacement, through The Benevolent Society v Waverley Council [2010] NSWLEC 1082, of the numerically prescriptive elements of the planning principle concerning the solar access (in Parsonage v Ku-ring-gai [2004] NSWLEC 347; (2004) 139 LGERA 354). As observed in The Benevolent Society, one of the numerical standards proposed in Parsonage had a perverse and counterintuitive impact in that, to cure a non-compliance with the Parsonage mandated numerical standard that required a window to have half its area in sunlight to be assessed as being in sunlight, the solution to non-compliance was to reduce the size of the window, clearly thus reducing the amenity of the room beyond.

50 In The Benevolent Society, this result was described as clearly both undesirable and inappropriate. As a consequence, the decision in The Benevolent Society, in effect, adopted those elements of Parsonage that were process related but removed and replaced the numerically prescriptive elements with process descriptors (including noting that strict mathematical formulae are not an appropriate measure of solar amenity).

51 In Edgar Allan Planning, Watts C published a planning principle designed to assist in the consideration of whether a proposed development should be regarded as additions or alterations to an existing building or whether the proposed development should be regarded as a new building even though elements of the fabric of the original building were to be incorporated in the development.

52 The planning principle in Edgar Allan Planning is a prescriptive one and is in the following terms:

A development application to alter and add to a building will be taken to be that relating to a new building where more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in plan and the area of the lowest habitable floor.

53 However, this approach ignores the fact that the nature of the analysis required depends on the reason why the enquiry is being made.

54 Whether something should be regarded as alterations or additions to a heritage item engages different considerations when compared to an enquiry, for example, as to whether particular controls defining a building envelope may be engaged or not by a development proposal. The purely mathematically derived approach in Edgar Allan Planning fails to engage with the fundamental preliminary question as to the purpose for which the enquiry is being made.

55 As a consequence, it is no longer appropriate to set a prescriptive basis for determining whether approval is being sought for additions and/or alterations or if it is an application for an entirely new development. As with solar amenity, strict mathematical formulae are not an appropriate basis for such an assessment. As a further consequence, the planning principle published in Edgar Allan Planning should be set aside and the planning principle set out below should be adopted in its place.

Planning principle

56 The first question to be considered is "what is the purpose for determining whether this application should be characterised as being for additions and/or alterations to an existing structure rather than an application for a new structure?" The answer to this fundamental question will frame the approach to be undertaken to the analytic framework set out below.

57 In determining whether an application is appropriate to be regarded as for additions and/or alterations or not, it is appropriate to follow, by broad analogy, the process discussed by Bignold J in Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 - namely undertaking both a qualitative and a quantitative analysis of what is proposed compared to what is currently in existence.

58 In this consideration, regard should be had to such of the matters in the following lists of matters as are relevant to the enquiry:

59 Qualitative issues

• How is the appearance of the existing building to be changed when viewed from public places?
• To what extent, if any, will existing landscaping be removed and how will that affect the setting of the building when viewed from public places?
• To what extent, if any, will the proposal impact on a heritage item, the curtilage of a heritage item or a heritage conservation area?
• What additional structures, if any, in the curtilage of the existing building will be demolished or altered if the proposal is approved?
• What is the extent, if any, of any proposed change to the use of the building?
• To what extent, if any, will the proposed development result in any change to the streetscape in which the building is located?
• To what extent, if any, are the existing access arrangements for the building proposed to be altered?
• To what extent, if any, will the outlook from within the existing building be altered as a consequence the proposed development?
• Is the proposed demolition so extensive to cause that which remains to lose the characteristics of the form of the existing structure?

60 Quantitative issues

• To what extent is the site coverage proposed to be changed?
• To what extent are any existing non-compliances with numerical controls either increased or diminished by the proposal?
• To what extent is the building envelope proposed to be changed?
• To what extent are boundary setbacks proposed to be changed?
• To what extent will the present numerical degree of landscaping on the site be changed?
• To what extent will the existing floor space ratio be altered?
• To what extent will there be changes in the roof form?
• To what extent will there be alterations to car parking/garaging on the site and/or within the building?
• To what extent is the existing landform proposed to be changed by cut and/or fill to give effect to the proposed development?
• What relationship does the proportion of the retained building bear to the proposed new development?

61 Obviously, the greater the overall extent of departure from the existing position, the greater the likelihood the proposal should be characterised as being for a new building.

62 It is not intended that the above lists should be regarded as exhaustive. Other matters may well arise for consideration in the facts and circumstances of a particular application or the reason why the analysis is being undertaken. However, having considered all of the listed matters (together with any other additional matters that may be relevant in the particular circumstances of the application), an evaluation can then be made as to whether or not a proposal would correctly be characterised as additions and/or alterations to an existing structure or whether the proposal should be characterised as an application for an entirely new structure.

The relevance of the change of approach

63 These proceedings demonstrate the desirability of changing from a mathematically structured prescriptive planning principle to one that is based on an inquisitive process because there is at least one element of the controls in the Development Control Plan (the DCP) that requires different considerations depending on whether the application is for a new building or not. Whilst Mr Pickles proposed a process of interpretation of the DCP's provisions that, if we were to adopt it, could lead us to conclude that this was not a new building for the relevant purposes if the mathematical approach in Edgar Allan Planning were to have been applied, adopting the new approach renders that unnecessary.

64 In this instance, the DCP provides, for new buildings, a front setback requirement that this proposal does not meet. That setback requirement would be breached significantly because elements of that which is proposed to replace the 1970s extensions to the heritage building will come significantly closer to the main street frontage than would be permitted if the numerical setback for new buildings was to be applied.

65 However, application of the planning principle that we have set out to replace the formulaic approach in Edgar Allan Planning permits us to have regard to the overwhelming importance of and significant extent of retention of the heritage item elements of the original cottage (including the reinstatement of its main, southern roof plane to its original presentation to the street). The new approach enables us to conclude that not only was that proposed to be demolished properly regarded as additions and alterations to the original structure (as they were at the time they were approved) but that that which is proposed to replace it through this application should similarly be regarded as additions and alterations to that original structure.

66 Although on a purely quantitative basis, a respectable argument can be mounted that that which is proposed in this application might be regarded as forming a new building, a proper qualitative analysis - paying appropriate regard to the desirability of preserving the heritage item and enhancing its presentation in its setting when viewed from the public domain - makes, in our opinion, an overwhelming case for regarding this proposal as being additions and alterations and thus lifting the necessity to indulge in semantic engineering to avoid compliance with the front setback controls in the DCP.

The need for a conservation management plan

67 A proper conservation management plan is, in our view, an essential prerequisite to approval of the proposed development. At the time of the hearing, although the applicant had had some preliminary work done on such a plan, no conservation management plan had been submitted to the Council for consideration. Whilst we are satisfied that further discussions between the parties' heritage advisers may result in an agreed plan, we remain of the view, as we informed the parties during the hearing, that it is such an essential prerequisite for giving development consent that we also require to be satisfied that the plan is appropriate, even if the terms of such a plan are agreed to between the parties.

68 As a consequence, the directions that we give at the conclusion of this judgment envisage that there can be a further hearing if there is no agreement about the terms of a conservation management plan or if there is such an agreement but we are dissatisfied with any aspect of the plan, but that if there is an agreed plan and, upon its examination by us, there are no concerns we hold about its terms, that plan can be incorporated in the conditions of development consent and development consent granted for the proposal in its revised form.

Conclusion

69 We are satisfied that the wide range of minor changes to the proposal that have resulted from the agreements between the applicant's and the Council's heritage advisers together with the two additional changes we have required (by finding in favour of the Council's position on the removal of the existing dormer from the southern roof plane of the heritage item and the replacement of the Callistemons in the Centenary Avenue kerbside nature strip with Camellias) renders the proposal worthy of development consent.

70 In reaching this position, for the reasons explained earlier, it has been appropriate to set aside the numerically prescriptive planning principle published in Edgar Allan Planning as to whether a development proposal can properly be characterised as additions and alterations to an existing structure or whether it should be regarded as a proposal for an entirely new structure.

71 Moving to a process-derived principle provides a more appropriate foundation to assist others who need consider these questions where there are differences in controls or in assessment processes that arise depending on the answer to the characterisation question.

Directions

72 The process needed to enable us to grant development consent requires a number of further steps by the parties. We therefore give the following timetable for these:

1. The matter is set down for mention before Moore SC at 9:15 AM on 25 October;

2. The applicant is to file and serve revised, settled plans that reflect this decision and the matters contained in or arising out of Exhibit 3 by the close of business on 21 October;

3. The applicant is to file and serve (if required), by the close of business on 21 October, an objection pursuant to State Environment Planning Policy No 1 to compliance with the landscaped area development standard;

4. The applicant is to file and serve a draft conservation management plan by the close of business on 21 October;

5. The respondent is to file and serve (including their filing electronically by e-mail in .doc format to the Court for attention of Moore SC) revised, settled conditions of consent that reflect this decision by the close of business on 23 October;

6. If the respondent has any concerns with the terms of the draft conservation management plan, the respondent is to file and serve an outline of those concerns by the close of business on 23 October;

7. If directions (2) to (5) are complied with and neither we or the council have any concerns with the terms of the draft conservation management plan, we will make orders in chambers to give effect to this decision and vacate the mention on 25 October;

8. The exhibits, other than Exhibits 3 and 7, are returned; and

9. Liberty to re-list before Moore SC on two days notice.

Tim Moore

Senior Commissioner

Sharon Sullivan

Acting Commissioner of the Court

Decision last updated: 04 October 2013