Angus Property and Development Pty Limited v Woollahra Council

[2007] NSWLEC 566

Land and Environment Court

of New South Wales

CITATION:

Angus Property and Development Pty Limited v Woollahra Council [2007] NSWLEC 566

PARTIES:

APPLICANT
Angus Property and Development Pty Limited

RESPONDENT
Woollahra Council

FILE NUMBER(S):

10410 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Amendment of Development Consent, Alterations and additions to cafe and retail areas, garbage collection, disable access, residents access, potential noise from increased cafe area, privacy, operating hours.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy 64 (Advertising and Signage)
Disability Discrimination Act 1992
Paddington Development Control Plan 1999
Woollahra Access Development Control Plan

DATES OF HEARING:

17/08/2007 and 20/08/2007

EX TEMPORE JUDGMENT DATE:

20 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor
Instructed by Ms F. Milner
of Pike Pike and Fenwick

RESPONDENT
Ms R. Dawes, solicitor
of Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

20 August 2007

10410 of 2007 Angus Property and Development Pty Limited v Woollahra Council

JUDGMENT

1 This is a s 96 application in Appeal 10410 of 2007 between Angus Property and Development Pty Limited and Woollahra Council. The application is in regard to Development Consent DA 167/2004, which was granted for alterations and additions to 2-16 Glenmore Road, Paddington.

2 The subject property is located on the north-western corner of Glenmore Road and Oxford Street, Paddington, with Hopewell Lane abutting the northern boundary of the site. The site is basically triangular in shape with an area of 575.09 square metres. The site is known as lot 1 in DP 622010. The site slopes down from Oxford Street approximately 3 metres is a north-westerly direction. Two Ailanthus altissima, Trees of Heaven, are located in the rear courtyard and are required to be retained by condition 15 of the original development consent.

3 The site consists of eight commercial suites with frontage to Glenmore Road. A two-storey masonry building exists on the site with eight studio dwellings located above each of the commercial suites. The building has undergone significant alterations at both the front and the rear. At the rear there are steel frame juliet balconies and timber frame dormer windows at the attic or 3rd storey level which contribute to the attractive visual appearance of the façade. The building is of Edwardian appearance with rendered masonry construction and a tall parapet.

4 The proposed modifications include the following:

(a) change of the approved use of the rear portion, approximately 65 square metres of shop retail 01, from retail to café;
(b) change of the approved use of shop retail 08 from café to retail;
(c) the length of shop retail 01 to be reduced so that the rear northern external wall is set back 4.5 metres from Hopewell Lane, this setback area is created as an open terrace with a planter box along the northern edge;
(d) addition of new bi-fold doors to the north elevation of shop retail 01;
(e) addition of a new glass wall and door to shop retail 01 allowing access to the open terrace area;
(f) new timber frame shopfront to retail 01 with two centre opening doors and fixed glazing adjacent;
(g) addition of two new toilets accessible from the open terrace area;
(h) addition of new bronze lettering to read as “The Intersection 2007” on the parapet to shop retail 01;
(i) bi-fold doors to the west of shop retail 08 are replaced with a fixed window.

5 Paddington is a unique area of national heritage significance. The land is adjoined by a two-storey rendered building at 118-120 Oxford Street occupied by “Alannah Hill”. The surroundings comprise two-storey and single storey mixed used shopfront terrace style developments. At the rear across Hopewell Lane towards the north-west is a residential zone containing terraces fronting Hopewell Street. To the north-east across the lane is more commercial zoning with buildings fronting Glenmore Road and having the side walls and rear area of commercial terraces facing the terraces at the back of the subject property.

6 The statutory controls are the Woollahra Environmental Plan 1995. The zoning of the subject site is Neighbourhood Business (3)(c). Maximum building height 9.5 metres, maximum floor space ratio 1:1. State Environmental Planning Policy 64 (Advertising and Signage) also applies. The Disability Discrimination Act 1992 also applies in regard to access to premises.

7 In terms of policies the Paddington Development Control Plan 1999 applies in relation to advertising signs on building and on-site vehicle parking, garages, carports, driveway access and serving facilities. Also the Woollahra Access Development Control Plan applies in regard to access.

8 The reasons for refusal originally given by the council were:

(1) the proposed modification with respect to the planter box, 5.6 metres by 1 metre, is not considered sufficient to soften the landscape of Hopewell Lane and will not be able to provide an attractive outlook from the rear of retail 01, as such the proposed modification will have an adverse amenity impact from Hopewell Lane, retail 01 and the originally approved café terrace in that the proposed planter box at the rear of retail 01 is not considered satisfactory;
(2) the proposed lettering does not reflect either the name of the building or the name of the business of the building, does not comply with State Environmental Planning Policy 64 and (g)(2) under pt 5.2.10 of the Paddington Development Control Plan;
(3) the proposed relocation of the café from shop retail 08 to shop retail 01 will create unacceptable conflicts with the other approved uses on the site, that are residential units on the first floor;
(4) the proposed café if operated by its own will not comply with the requirements prescribed in Woollahra Access Development Control Plan and the Disability Discrimination Act 1992;
(5) the proposed modifications are not in the public interest.

9 The proposal had been advertised and objections received mainly from the residential terraces in Hopewell Street that at an angle face the back of the proposal. A new owner of 3 Hopewell Street, a Ms G Bill, had written an objection generally along the line of previous objections and had requested the following matters be taken into account:

(1) the best possible soundproofing of the café area to reduce the impact of noise on the immediate residents;
(2) reduce the hours of trade of the café to 9am to 8pm to reduce impact of noise on the immediate residents;
(3) ensure that the café’s rubbish is collected from Glenmore Road or even Oxford Street rather than Hopewell Lane to ensure noise reduction;
(4) apply reasonable restriction on the number of tables and patrons permitted at any one time on the terrace to reduce the impact of noise on the immediate residents;
(5) to ensure that the café is responsible for policing patrons entering and exiting the café by the shopfront and not by the stairs to the terrace in Hopewell Lane.

10 During the site view the court heard evidence from the council’s town planner, Mr Wong, and the applicant’s town planner, Mr Lovell, and from the architect of the proposal, Mr Grinham. Evidence was taken on site in regard to the objection and the draft conditions proposed by the respondent. During the course of that evidence and subsequent discussions the parties reached agreement on most matters which would take reasonable care of the objectors’ concerns.

11 In regard to patrons entering the proposed café and terraces a condition was proposed that all public access would be from Glenmore Road or Oxford Street, not from the rear lane, although residents to the upstairs studios would, as they currently do, access from Hopewell Lane.

12 In regard to soundproofing and privacy of the nearby residences the council proposed a condition to restrict the number of persons on the two terraces at any one time to forty-eight. Whilst the applicant did not agree to this condition, the applicant noted that forty-eight persons was about the capacity of those terraces when tables and chairs were located within the usable part of the terrace. The usable area excluded the area shown on drawing 1804/S96-01 issue 2 where the access area from the stairs for the residents was shaded in a different coloured tile on the terrace. Table and chairs were to be prohibited from that area to enable easy access.

13 The restriction of numbers would control the amount of noise that could be generated by the patrons. It seemed to me that the original consent which permitted the major part of the terrace to be used as a café area would be the major generator of noise and that would be reflected towards Hopewell Street. The second terrace at the rear of retail 01 was quite small and noise generated on it would tend to be reflected off the building in a different direction from the rear of the Hopewell Street terraces.

14 In terms of privacy the applicant proposed a hedge in planter boxes along the Hopewell Lane edges of the terraces, one section of these hedges had already been planted and indicated that there would be a substantial visual screen.

15 On the western side of the new small terrace of retail 01 a three metres high timber screen was proposed so supplement the hedge on the Hopewell Lane side. The council was concerned about the height of this screen and it was agreed it could be lowered to 2.4 metres and the hedge would be trimmed to a similar height so that there was architectural unity. Also a one metre wide temporary timber screen towards the corner of the western boundary in Hopewell Lane would be installed until the hedge had grown sufficiently. Thereafter it could be removed.

16 For a similar reason: to prevent sight lines from the main terrace which is behind retail areas 2 to 8, a temporary screen one metre wide would be erected until such times as the hedges had grown to prevent sight lines to the rear of the Hopewell Street terraces.

17 In regard to the collection of rubbish the council and the applicant had agreed on a condition that waste would not be collected at night-time hours and would be collected by contractor between 6am and 10pm daily Monday to Saturday and 8am to 10pm Sunday.

18 The concerns over disabled access were resolved by providing all public access from the Glenmore Road/Oxford Street entry to the building which was more or less level with the footpath, and the prevention of access from the Hopewell Lane side.

19 Also another condition restricted the operation of retail 01 to be under a single tenancy which included the terraces so that there could not be in the future a separation of tenancies that would eliminate disabled access as previously described.

20 Another matter of concern was the safety of residents using the rear lane stairway and passage through the terrace to reach the stairs to the studios. It was a concern of Mr Wong that there could be conflict between persons and waiters directly outside the sliding doors between retail 01 and the large terrace. This was discussed on site particularly in regard to the sight lines for persons using the stairs being seen or being able to see waiters with trays coming in and out of the door. A doorway width of two metres was agreed upon towards the centre of the opening. There would be sufficient sight lines when approaching from either direction so that persons could observe each other and take suitable action.

21 I shall add that the applicant sought that a three metre wide doorway. However in looking at the position on site and using the stairways it was my opinion that the opening necessary to give the appropriate sight lines is two metres as now shown on drawing 1804/S96-01 issue 2 as amended to 20 August 2007.

22 The respondent handed up exhibit 5 and there were some handwritten annotations on it that the applicant had agreed to and handwritten draft conditions 72 and 73 which I adopt as appropriate.

23 In referring to the lettering I saw the entablature on the Glenmore Road frontage where it was to be erected in brass lettering, copperplate gothic bold, the words The Intersection 2007. There was no evidence in regard to what the name of the building may have been originally. The entablature seemed the obvious place that any name would have gone, there was no evidence of a previous name on there. It seems with the lettering being of an appropriate style and materials it was a reasonable way of identifying the group of buildings existing on the site.

24 Overall I find no reason to refuse the proposal as now before me subject to the conditions proposed by the respondent in exhibit 5. I see no reason to reduce the hours of trade as requested by the objector since the council in its original considerations had set the opening hours and made no further submission or evidence to change that.

25 Therefore the Orders of the Court are:

1. The s 96 application to amend Development Consent DA 167/2004 for alterations and additions to Nos 2-16 Glenmore Road, Paddington is granted as shown on amended and hand annotated drawings in Exhibit A of this appeal, subject to the conditions in Annexure A hereto.
2. The exhibits are returned to the parties except Exhibits A, 3 and 5.

___________________

K G Hoffman
Commissioner of the Court
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