Form Architects (Aust) Pty. Limited v Ku-ring-gai Council [2017] NSWLEC 1107

Form Architects (Aust) Pty. Limited v Ku-ring-gai Council [2017] NSWLEC 1107

The Court was satisfied that the existing 1985 cottage was not contributory to the heritage significance of the Wahroonga Heritage Conservation Area and made only a neutral contribution, because it was not from the key Federation or Inter-war periods and had likely been identified as contributory on an erroneous pre-1943 assessment. The proposal maintained a generous landscaped front setback, aligned with neighbouring dwellings to the east, respected the established streetscape pattern, did not unacceptably affect the adjoining heritage item at 3-5 Braeside Street or the Wahroonga Heritage Conservation Area, and remaining driveway crossover concerns could be addressed by condition....

Jurisdiction
Australia
Judgment Date
24 March 2017
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 590/15 / Hearing Held After Mandatory Conciliation Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979 Did Not Result in Agreement
Outcome
The appeal was upheld and Development Application No. 590/15 was approved subject to conditions of consent.
Legal Topics
['development Application for Alterations and Additions' 'wahroonga Heritage Conservation Area' 'contributory Building Assessment' 'impact on Adjoining Heritage Items' 'front Setback and Streetscape' 'driveway Crossover Conditions']
['environmental and Planning Law' 'heritage Conservation' 'development Control'] ['development Application for Alterations and Additions' 'wahroonga Heritage Conservation Area' 'contributory Building Assessment' 'impact on Adjoining Heritage Items' 'front Setback and Streetscape' 'driveway Crossover Conditions']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Application No. 590/15 / Hearing Held After Mandatory Conciliation Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979 Did Not Result in Agreement

Legal Issues

  1. 1 ['Whether the existing cottage contributes to the heritage significance of the Wahroonga Heritage Conservation Area' 'Whether the proposed alterations and additions would have an unacceptable impact on the heritage significance of the Wahroonga Heritage Conservation Area' 'Whether the proposal would adversely affect the heritage significance, amenity or views to adjoining heritage items at 3-5 Braeside Street' 'Whether the proposed front setback, garage, pool cabana, driveway and landscaping were acceptable having regard to the LEP and DCP controls' 'Whether driveway crossover level and retaining wall concerns could be addressed by condition']

Ratio Decidendi

The Court was satisfied that the existing 1985 cottage was not contributory to the heritage significance of the Wahroonga Heritage Conservation Area and made only a neutral contribution, because it was not from the key Federation or Inter-war periods and had likely been identified as contributory on an erroneous pre-1943 assessment. The proposal maintained a generous landscaped front setback, aligned with neighbouring dwellings to the east, respected the established streetscape pattern, did not unacceptably affect the adjoining heritage item at 3-5 Braeside Street or the Wahroonga Heritage Conservation Area, and remaining driveway crossover concerns could be addressed by condition....

Court Disposition

The appeal was upheld and Development Application No. 590/15 was approved subject to conditions of consent.

Orders

  • ['The appeal is upheld.' 'Development Application No. 590/15 for alterations and additions to the existing dwelling at 7 Braeside Street, Wahroonga, is approved, subject to the conditions of consent at Annexure "A".' 'The exhibits, other than exhibits 3, A, B, C E and F, are returned.']