Austin v Woollahra Municipal Council
[2016] NSWLEC 1226
•08 June 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Austin v Woollahra Municipal Council [2016] NSWLEC 1226 Hearing dates: 6 June, 2016 Date of orders: 08 June 2016 Decision date: 08 June 2016 Jurisdiction: Class 1 Before: O’Neill C Decision: 1. The appeal is upheld.
2. Development Application No. 507/2015 for a new rear dormer window is approved, subject to the conditions at Annexure A.
3. The exhibits, other than exhibit 2, are returned.Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a terrace house located in the Paddington Heritage Conservation Area; new rear dormer window; roller door on rear boundary to provide access from lane. Category: Principal judgment Parties: Mr John Austin (Applicant)
Woollahra Municipal Council (Respondent)Representation: Counsel:
Self-represented (Applicant)
Mr Peter Rigg solicitor (Respondent)
File Number(s): 2016/155216 (formerly 10151 of 2016)
Judgment
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COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 507/2015 for alterations and additions to a terrace house including a new rear dormer window and roller garage door on the rear boundary (the proposal) at 30 Gosbell Street, Paddington (the site) by Woollahra Municipal Council (the Council).
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The appeal was subject to mandatory conciliation on 6 June, 2015, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.
Issues
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The applicant agreed to the imposition of Council’s condition C.1(a) on the consent, as follows:
The maximum height of the rear-facing dormer shall not exceed RL23.43, ie at least 600mm below the ridge of the principal building.
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The parties’ agreement regarding the imposition of the above condition resolves Council’s contentions regarding the proposed rear dormer window.
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The Council’s contention in the matter is that the proposed rear roller door breaches the 1.8m maximum height of rear boundary fences in the Woollahra Development Control Plan 2015 (DCP 2015) and is not considered a traditional height for fences in Paddington; is not considered an appropriate structure for pedestrian access; and will obstruct views of the rear elevation of terraces from Dillon Lane.
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The Council submits that the proposal can be granted consent, subject to the imposition of Council’s without prejudice conditions of consent (exhibit 3), which include include the following condition in relation to the rear boundary at C.1(b):
The proposed rear roller door and associated masonry surround is deleted.
The site and its context
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The site is on the southern side of Gosbell Street, between Boundary Land and Neild Avenue. The existing dwelling is a part of a Federation style terrace row. The rear of the site backs onto Dillon Lane.
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The site area is 116.02sqm, according to Mr Wong’s evidence. The rear boundary of the site is shown as 4.78m on the drafted plans (exhibit A), as there was no site survey submitted as part of the application.
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The neighbouring property at 28 Gosbell Street has a rear masonry wall with a roller door.
The proposal
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The proposal is to construct a rear dormer window and a new rear boundary masonry wall with a roller door. The overall height of the rear wall at the highest ground level point is shown on the rear elevation (exhibit A) as 3.18m. The roller door opening is 2.4m high and 3.84m wide (exhibit A).
Planning framework
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The site is zoned R2 Low Density Residential in Woollahra Local Environment Plan 2014 (LEP 2014) and the proposal is permissible with consent. The relevant objectives of the R2 zone are:
• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.
• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.
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The site is located within the Paddington Heritage Conservation Area (Schedule 5 LEP 2014, Part 2, item C8). Clause 5.10 Heritage Conservation of LEP 2014 relevantly includes the following objectives at sub-cl (1):
(a) to conserve the environmental heritage of Woollahra,
(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views
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The consent authority must consider the effect of the proposed development on the heritage significance of a heritage conservation area before granting consent at sub-cl 5.10(4) of LEP 2012.
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DCP 2015 includes, at Part C, relevant objectives and controls for heritage conservation areas. The relevant objectives and controls for the rear boundary treatment are at C1.5.5 Fences, walls and gates. At C17, new fences and gares to rear lanes are to be of a design and height, and are to use materials and details, which are consistent with the building’s context and with the controls contained in Table 4. Table 4 of DCP 2014 includes a maximum height for rear fences and gates of 1.8m and timber painted bi-fold gates are acceptable.
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CL.5.6 of DCP 2015 includes objectives and controls for on-site vehicle parking, garages, carports, driveway access and servicing facilities. C1.5.6 includes the following in relation to the treatment of rear lanes in Paddington:
The rear lanes of Paddington are now often lined with garage doors and brick walls. They form an impenetrable and unattractive barrier between private gardens and the public spaces, and have an adverse effect on the character and use of laneways. Their height and mass prevent views towards the rear of buildings, whose forms contribute to the character of the lane. There is an alienation of the pedestrian in these spaces. High solid walls and fences on the rear boundaries can also provide opportunities to screen burglars. This section of the DCP aims to readdress the treatment of these forms.
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Objective O3 of C1.5.6 is to improve the character of laneways where unsympathetic earlier development such as high brick walls and full width garages has eroded the quality of these urban spaces.
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Objective O6 of C1.5.6 is to provide off street car parking and servicing facilities where feasible and O7 to retain sandstone kerbing on streets and laneways where feasible.
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Objective O10 of C1.5.6 is to ensure there is no net loss of vehicle parking spaces in the area.
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Figure 26 of C1 DCP 2015 includes a laneway garage which is shown as a wall with a garage door.
Expert evidence
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The Council relied on the expert planning evidence of Mr Thomass Wong. According to Mr Wong, the proposal is not for on-site parking and the proposal was assessed accordingly.
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Mr Wong measured the height of the neighbouring rear masonry wall with a roller door and the overall height at the lowest ground level point is approximately 3m.
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Mr Wong measured the dimension of the length of the rear courtyard from the rear elevation of the terrace house to the inside of the masonry wall on the rear boundary as approximately 5.1m.
Submissions
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Mr Rigg submits that the principal purpose of the proposal is to discourage parking in the laneway adjacent to the rear boundary of the site and that the proposal is antipathetic to the objectives and controls of DCP 2015.
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Mr Austin submits that the proposal complies with DCP 2015 as CL.5.6 includes ‘servicing facilities’; that there are numerous roller doors fronting rear lanes in the Paddington area as demonstrated by the survey he carried out on 10 March 2016 (exhibit C); and that the Council’s submission that the proposal will have a detrimental impact on the heritage significance of the Paddington Heritage Conservation Area lacks credibility, as demonstrated by the number of existing roller doors fronting rear laneways in Paddington. He submits that the purpose of the proposal is to provide access for his mother-in-law who is confined to a wheelchair and grandchildren in prams.
Findings
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The dispute between the parties is whether or not condition C.1(b), quoted above at par 6, is imposed on the consent, that is whether the roller door in a masonry wall as shown on exhibit A is granted consent or deleted by condition.
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I accept Mr Austin’s submission, in principle, that the addition of a roller door within a masonry wall would not, if consistent with the dimensions for a garage door for a single space in Table 5 in C1 of DCP 2015 and of appropriate detailing, detrimentally impact on the heritage significance of the Paddington Heritage Conservation Area because the rear access is off a laneway and there are numerous examples of roller doors fronting rear laneways nearby. Any future application for off-street parking would be subject to the suite of objectives and controls in the relevant planning regime, including meeting minimum dimensions and minimum landscaped areas.
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However, the proposal is not for an on-site parking space in the rear courtyard. I agree with Council’s contention that the roller door is not required for pedestrian access to the site. A number of alternative configurations for gates, including a mechanical sliding gate, were canvassed by the Council during the conciliation phase and none of these were acceptable to Mr Austin as an alternative. For this reason, I do not accept Mr Austin’s submission that the purpose of the roller door is for pedestrian access. I accept Mr Rigg’s submission that the principal purpose of the roller door is to discourage parking in the laneway adjacent to the rear boundary of the site and this would effectively privatise a public on-street parking space in the public domain, which is inappropriate and would remove an on-street parking space. The proposal does not comply with objective O10 of C1.5.6 of DCP 2015, to ensure there is no net loss of vehicle parking spaces in the area.
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I do not accept Mr Austin’s submission that C1.5.6 of DCP 2015 does not necessarily relate to parking. C1.5.6 deals specifically with on-site vehicle parking and associated infrastructure.
Conclusion
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Having considered all the material in evidence and submissions, I accept Council’s submission that the proposal can be granted consent, subject to the imposition of Council’s without prejudice conditions of consent (exhibit 3), which includes condition C.1(b), ‘The proposed rear roller door and associated masonry surround is deleted.’
Orders
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The orders of the Court are:
The appeal is upheld.
Development Application No. No. 507/2015 for a new rear dormer window and rear boundary fence is approved, subject to the conditions of consent at Annexure A.
The exhibits, other than exhibit 2, are returned.
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Susan O’Neill
Commissioner of the Court
155216.16 O'Neill (C) (415 KB, pdf)
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Decision last updated: 08 June 2016
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