Barzio Holdings Pty Limited v Woollahra Municipal Council

[2014] NSWLEC 1171

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barzio Holdings Pty Limited v Woollahra Municipal Council [2014] NSWLEC 1171
Hearing dates:	23 April 2014
Decision date:	01 May 2014
Jurisdiction:	Class 1
Before:	Brown C
Decision:	Directions for filing amended plans and conditions
Catchwords:	DEVELOPMENT APPLICATION: use of a terrace for a restaurant/bar, including alterations and additions to the building - further amendments result in council contentions being satisfactorily addressed - resident concerns in relation to visual privacy, noise, parking, overshadowing
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No1 Woollahra Local Environmental Plan 1995
Category:	Principal judgment
Parties:	Barzio Holdings Pty Limited (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Mr R White, barrister (Applicant) Mr A Hudson, solicitor (Respondent) Andrew Fagent and Company (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10910 of 2013

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council of DA 359/2012 for alterations and additions and use of a terrace building for a restaurant/bar at 6 Heeley Street Paddington (the site). The site also has a rear lane access to White Lane.

1. The application has been amended over time however approval is sought for the following:

• Ground floor - excavation and extension towards the White Lane frontage to provide for 52 seats, a servery, disabled toilet, kitchen, stairs to the first floor and storeroom within existing refurbished garage.
• First floor - extension of the existing floor level to provide for 50 seats with sliding metal roof over part of the dining area, a servery, walkway and roof top garden that leads to toilets towards the White Lane frontage and bin storage in refurbished garage with direct access to White Lane.
• Attic - new attic and dormer window towards Heeley Street and new roof and dormer over toilet/bin storage area in refurbished garage at the White Lane frontage.

1. The Statement of Facts and Contentions identified that the application should be refused as the development:

1. will have an unacceptable heritage impact on the Paddington Heritage Conservation Area (the HCA),

2. will have unacceptable amenity impacts on nearby residential properties in relation to visual privacy, noise and traffic,

3. will have potentially unacceptable fire safety impacts,

4. will have inadequate on site vehicular facilities for parking and loading/unloading, and

5. has provided insufficient information to properly assess the application.

1. Prior to the commencement of the proceedings on site, the applicant proposed further amendments that, after consultation with the council officers, were found to address the concerns raised by council in their Statement of Facts and Contentions in relation to heritage, amenity impacts, fire safety and parking and loading/unloading. The matters identified as having insufficient information were addressed as part of the further amendments or additional conditions of consent. In general terms, the further amendments provided for:

• Ground floor - the reduction in the built form by the relocation of the kitchen into the building to provide a reduced and more consistent rear setback with adjoining buildings, tree planting and seating in the area between the building and the refurbished garage and the relocation of the disabled toilet to the area under the refurbished garage.
• First floor - the reduction in the built form by the removal of the walkway and roof top garden to provide a reduced and more consistent setback with adjoining buildings, the construction of a small balcony in place of the walkway and a store and small car parking space in the refurbished garage with direct access to White Lane.
• Attic - the use of the attic as a toilet.

1. The further amendments were explained to the residents at the site inspection prior to them giving evidence. They ultimately maintained their objection to the further amendments on the basis of:

• noise from the rear of the property to properties with a frontage to Duxford Street,
• increased parking problems,
• overlooking, and
• overshadowing.

1. The site is rectangular in shape and has a total area of 120.1sq m. The subdivision pattern of the area follows the strict Victorian period subdivision pattern of alternating wide streets and narrower rear lanes, set out on a rectangular grid. The site has a principal street frontage to Heeley Street and a secondary frontage or rear lane access to White Lane. The site contains a Federation period residential terrace house that forms part of a terrace group located between 2 and 8 Heeley Street, adapted, zoned and used for commercial use.

1. Buildings in the locality are predominantly from the Victorian and Federation period with commercial and retail uses grouped around the corner of Glenmore Road, Broughton Street, Heeley Street and Goodhope Street consistent with the commercial zone of this area. The surrounding land use is predominantly residential.

1. The site is within Zone No 3(c) - (Neighbourhood Business "C" Zone) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed use is permissible with consent in this zone. Clause 8(5) states:

(5) The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development.

1. The relevant objectives, in cl 2, of this plan are:

(b) in relation to retailing and commerce:

.

(iii) to ensure that new development in the commercial centres does not unduly affect the amenity of adjoining residential areas by virtue of the use, design, bulk and scale of the development and traffic generation,

(iv) ,

(v) to ensure that consideration is given to providing adequate levels of access when alterations and additions to existing buildings and new developments for commercial or retail uses are proposed,

(d) in relation to traffic and transport:

.

(iii) to ensure the adequate provision of car parking and servicing facilities within commercial areas,

.

(vii) to minimise the impact, on adjoining residential areas, of traffic and parking generated by commercial areas,

(g) in relation to heritage conservation:

(i)

(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas,

(iii) to encourage the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas,

(iv) to enable the adaptation of existing non-residential buildings of heritage significance in a manner which is compatible and sympathetic with the fabric and character of the building or works and the use and fabric of neighbouring lands,

1. The relevant 3(c) zone objective is:

.

(b) to provide for development of a scale and type compatible with the amenity of the surrounding residential area, and

.

1. Clause 11 provides development standards for floor space ratio (FSR). Clause 11(1)(a) provides a building (other than a dwelling-house or a dual occupancy) shall not be erected on land if the FSR would exceed the ratio indicated for that land on the density map. The FSR on the density map is 1:1 whereas the proposal, with the further amendments, has an FSR of 1.16:1. The applicant has provided an objection under State Environmental Planning Policy No1 - Development Standards (SEPP 1) to show why strict compliance is unreasonable and unnecessary in the circumstances of this case. Clause 11A provides objectives for the FSR development standard.

1. Paddington Heritage Conservation Area Development Control Plan 2008 (the Heritage DCP) and The Woollahra Parking Area Development Control Plan (the Parking DCP) apply.

1. Additional joint reports on heritage and noise were provided on the further amendments. Mr Michael Neustein, an architect and urban designer for the applicant and Mr Mario D'Alessio, a Development Assessment Officer with the council provided oral evidence on the further amendments relating to amenity, Building Code of Australia fire safety compliance and parking and loading. A summary of the additional joint reports and the oral evidence is set out in the following paragraphs.

Heritage

1. Ms Amelia Parkins, the council heritage expert and Mr Robert Staas, the applicant's heritage expert agree that that there are ho heritage impediments to the approval of the application. They agree that the reduced position of the rear additions and the provision of an open courtyard at ground level is an acceptable resolution of the main heritage contention. This amendment meets the general intent of the Heritage DCP and results in improved heritage outcomes. They also agree that an open balcony at the rear of the first floor level is acceptable and will not have any significant adverse impact on the HCA, provided it does not extend beyond the eave overhang of 8 Heeley Street. Also, the retention of the wall plane defining the principal building form, is an acceptable Interpretation of the extent of the original building in accordance with the requirements of the Heritage DCP.

1. I accept the conclusions of the experts on this matter.

Noise

1. Mr Barry Murray, the council acoustic expert and Mr Steven Cooper, the applicants acoustic expert addressed potential noise sources from mechanical plant, the general use of the premises, the front first floor balcony, the rear first floor balcony and ground floor outdoor area and concluded that noise would not be a reason to refuse the application subject to conditions of consent that set noise goals for mechanical plant and the use of the premises and a 10pm time restriction on the use of the front first floor balcony, the rear first floor balcony and ground floor outdoor area.

1. I accept the conclusions of the experts on this matter as the proposal satisfies objectives O1 and O2 in cl 4.1.10 Acoustic and visual privacy of the Heritage DCP that state:

O1 To ensure an adequate degree of acoustic and visual privacy in building design.

O2 To minimise the impact of new development on the acoustic and visual privacy of existing development on neighbouring lands.

Amenity

1. Mr Neustein and Mr D'Alessio agree that there are no amenity impacts that would warrant the refusal of the application largely because of the reduced extension of the rear additions and the removal of the dining area, walkway and roof top garden towards White Lane. They conclude that noise has been addressed by the acoustic experts and found to be acceptable (subject to additional conditions). Also, given the reduced extension of the rear additions and the restriction on views by the refurbished garage, overlooking has been minimised to adjoining properties to an acceptable level. For those properties with frontage to Duxford Street, they accept that there is a significant physical separation distance between even the closest residential property and the site. The reduction in the rear additions also ensures there can be no significant increased shadowing on nearby properties.

1. I accept the conclusions of the experts on this matter as the proposal satisfies objectives O1 and O2 in cl 4.1.10 Acoustic and visual privacy of the Heritage DCP that state:

O1 To ensure an adequate degree of acoustic and visual privacy in building design.

O2 To minimise the impact of new development on the acoustic and visual privacy of existing development on neighbouring lands.

Parking/loading

1. Mr Neustein and Mr D'Alessio agree that there are no parking or loading impacts that would warrant the refusal of the application. In accepting that the limited site area and small frontage to White Lane does not allow the full provision of parking in accordance with the Parking DCP, the experts accept that the use of the area for a small parking space that was previously exclusively used for bin storage off White Lane satisfactorily addresses this matter. They agree that this is acceptable in the circumstances and also allows for any future change of use from the current restaurant use.

1. I accept the conclusions of the experts on this matter as the proposal satisfies the objectives O6 and O12 in cl 4.2.6 On site vehicle parking, garages, driveway access and servicing facilities of the Heritage DCP that state:

O6 To provide off-street parking and servicing facilities where feasible.

.

O12 To ensure there is no net loss of vehicle parking spaces in the area.

Building Code of Australia (BCA) fire safety compliance

1. Mr Neustein explained that BCA fire safety compliance centred on the existing non-complying internal stairs and that the alterations and additions would provide new stairs that complied with the BCA requirements. I understand this approach was acceptable to Mr D'Alessio.

SEPP 1 objection

1. Mr Neustein provided an amended SEPP 1 objection for the further amendments to show why strict compliance with the FSR development standard in cl 11 of LEP 1995 was unreasonable and unnecessary. As I understand, Mr D'Alessio accepted that there are reasons for the variation to the development standard based on other variations granted nearby and the further amendments offered by the applicant.

1. With a reading of the SEPP 1 objection, I concur with the conclusion of Mr Neustein and Mr D'Alessio that strict compliance with the FSR development standard in cl 11 of LEP 1995 is unreasonable and unnecessary, in this case and that the SEPP 1 objection is well founded.

Clause 8(5)

1. Clause 8(5) acts as a barrier to the granting of consent unless "the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out".

1. My understanding of the evidence on the further amendments was that no such barrier now exists and as such, development consent can be granted subject to a merit review, which in this case has been found to be acceptable.

Directions

1. As the further amendments were not in a form that allowed orders to be made, some time should be allowed for the further amendments and other minor changes to be included in a fresh set of plans. This will allow these plans to be referenced in the conditions of consent that will also need to be amended to include matters such as the agreed conditions of the acoustic experts. A timetable for production of the amended plans and conditions will be discussed with the parties when these findings are handed down. Liberty to restore the matter on 48 hours notice is provided in the event that there is any dispute.

1. On submission of agreed amended plans and conditions, the following orders will be made in chambers:

1. The appeal is upheld.

2. DA 359/2012 for the use of a terrace building for a restaurant/bar, including alterations and additions to the building, at 6 Heeley Street Paddington is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 1, A and B.

______________

G T Brown

Commissioner of the Court

Decision last updated: 27 August 2014