Cagliarini v Woollahra Municipal Council

Case •

[2018] NSWLEC 1024

•

24 January 2018

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Cagliarini v Woollahra Municipal Council [2018] NSWLEC 1024
Hearing dates: 18 January 2018
Date of orders: 24 January 2018
Decision date: 24 January 2018
Jurisdiction:Class 1
Before: Brown C
Decision:

1. The appeal is upheld.
2. DA No. 562/16 for alterations and additions to an existing terrace house at 60 Cameron Street Edgecliff is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, A, B and D.

Catchwords: DEVELOPMENT APPLICATION: removal of condition of consent granted by council seeking deletion of attic as part of approval for alterations and additions to an existing terrace house
Legislation Cited: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 2014
Category:Principal judgment
Parties: Adam Cagliarini (Applicant)
Woollahra Municipal (Respondent)
Representation:

Counsel:
Mr J Palmer, solicitor (Applicant)
Ms S Puckeridge, solicitor (Respondent)

  Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers.(Respondent)
File Number(s): 2017/117315
Publication restriction: No

Judgment

  1. COMMISSIONER: This appeal was originally filed on 19 April 2017 as a deemed refusal of DA No. 562/16 for alterations and additions to an existing terrace house at 60 Cameron street Edgecliff (the site). On 11 May 2017, Development Consent was granted by the council to DA No. 562/2016 subject to conditions. The appeal remained on foot as the applicant opposed three conditions imposed by the council. The scope of the dispute was narrowed following the submission of amended plans with the only condition remaining in dispute was condition C.1(a) which states:

C.1 Modification of Details of the Development (Section 80A(1)(g) of the Act)

The approved plans and the Construction Certificate plans and specification required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments:

(a) Attic is to be deleted.

In order to comply with controls C.1, C.3 & C.7, and objectives O1,LO4, O6, O7, O8 O9, O10 of Section CI.4.1, controls C3, C4 & C6, and objectives O1, O3 & O4 of Section CI.4.3, controls CI, C3 & C6, and objectives O1 & O3 of Section C1.4.4, control C1, C3 & C7 and objectives O1,O3 & O4 of Section C1.4.5, Control C4 and Objective O2 of Section CI.4.10, controls C2, C3, C5, CI 1, C14 & C23, and objectives O1, O2 & O3 of Section CI.5.1 of Woollahra Development Control Plan 2015, the works to the attic, including the new attic, stairs to the attic, box gutter, dormer, skylight and new floor are to be deleted, and the existing skillion roof form is to be retained.

  1. The attic forms one part of the alterations and additions to the existing terrace house and involves the removal of the existing skillion roof and replacement with a pitched roof to provide for the attic space.

The site

  1. The terrace is one of a row of six narrow, two-storey mid-Victorian terrace houses at 56 - 66 Cameron Street Edgcliff. Collectively, the group is known as the Bowes Terrace Group. The terrace is constructed from face brick, which is painted cream with a corrugated metal skillion roof concealed by a decorative masonry parapet. The upper storey includes a timber balcony with an iron filigree railing shaded by a concave corrugated metal awning.

  2. Cameron Street is a narrow residential cul de sac lined with well-established trees. The street contains Victorian era terrace rows, free standing Victorian villas and modern terraces. The street slopes downward to the north west towards Edgecliff Railway Station. Bowes Terrace Group fronts the south-western side of the street and was constructed around 1879. The Bowes Terrace Group is the first of two similar rows of six houses along Cameron Street with the second row of six constructed around 1880.

  3. The site is 90.9sqm in area and is largely flat from the street frontage to the back courtyard. The paved path to the rear is approximately 0.7m below the level of the paved courtyard.

Relevant planning controls

  1. The site is within Zone R2 Low Density Residential under Woollahra Local Environmental Plan 2014 (LEP 2014). Relevantly, cl 5.10: Heritage Conservation applies as the site is within the Paddington Heritage Conservation Area. Specifically, cl 5.10(4) requires the Court “must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned”. The Bowes Terrace Group is not identified as a heritage item under Sch 1 of LEP 2014.

  2. Woollahra Development Control Plan 2015 (DCP 2015) applies. The relevant part is Chapter C1: Paddington Heritage Conservation Area and which includes, at C1.2.1, a comprehensive description of the significance of the Paddington Heritage Conservation Area. The relevant parts state:

The built environment of Paddington is an excellent example of the process of 19th century inner city urbanisation of Sydney which was largely completed by 1890. The predominant Victorian built form is an excellent representative example of the phenomena of land speculation and a 'boom' building period between 1870 and 1895.

The terraces of Paddington clearly trace the evolution of the imported English Georgian and Regency terrace models into the distinct Australian style evident in the Victorian era terraces.

Paddington retains many significant types of buildings that represent all phases of the suburb's historical development. These building types range from modest, small-scale, single storey timber and masonry cottages, to remnant examples of former gentry mansions, boom style middle-class terrace houses, apartment blocks and contemporary infill development, all of which are set in a varied network of streets, lanes and pedestrian accessways which reflect the phases of subdivision and development.

The attic

  1. Expert evidence was provided by Mr James Phillips for the applicant and Ms Catherine Colville for the respondent. Their evidence addresses the contentions raised by the council but collectively whether the proposed attic addition and roof form and the demolition of the existing skillion roof form will have an unacceptable impact on the Paddington Heritage Conservation Area. The Paddington Society provided evidence on site and supported the concerns raised by the council.

  2. Mr Phillips states that the row of six terraces has undergone change, as anticipated by LEP 2014 and DCP 2015. Two of the terraces have extensive changes to their roof form. The proposal is for a traditional roof form allowing an attic space to be constructed in an otherwise modest terrace. The roof form is a form to be expected in the conservation area and is only visible from a small section of a footpath running between Cameron Street and Bowes Avenue.

  3. Mr Phillips maintains that the visual impact is minimal and acceptable in the circumstances. The proposal uses a traditional and common roof style to provide additional amenity to the terrace house. In his opinion, the distinct architectural detail and shared characteristics of the Bowes Terrace Group have been compromised by the extensive work on two of the terraces. The group containing the proposal is not intact when viewed from the rear. A row that has two substantially changed terraces at one end cannot be seen to be intact, particularly when those alterations are not sympathetic and are extremely bulky. An attic that is visible from the footway between Bowes Avenue and Cameron Street will not distort the presentation of the terrace group. The view towards the rear of the terrace is limited and a pitched roof is a typical roof form that could be expected to be seen from such a vantage point.

  4. In considering cl 5.10(1)(b) of LEP 2014, the heritage significance of the heritage conservation area, including associated fabric, settings and views, in particular the streetscape of Cameron Street will be unaffected by the proposal. There is also no provision in DCP 2015 that would support the removal of the proposed attic.

  5. Ms Colville comes to a different conclusion. She states that the proposed pitched roof form is excessive in scale and height and does not retain the characteristic elements such as roof pitch and chimneys. The proposed roof will not maintain the overall balance of the Bowes Terrace Group in terms of roof form and alignment, given that it will introduce another different roof form into the roofscape, particularly as it is proposed in the centre of the group of six terraces. The proposed pitched roof is not a traditional roof form to a terrace with a parapet roof line. The original form of the roof exists as a large single skillion falling from the parapet to the rear of the building. This is a significant identifying element of the traditional terrace house and particularly significant when the subject site is in the centre of a group of six. The proposed attic addition would compromise this key characteristic of the skillion roofed terrace house style..

  6. Whilst two of the terraces in the group have been altered, the alterations and additions to 64 and 66 Cameron Street were approved prior to the current controls coming into force, some 30 years ago. DCP 2015 now requires that alterations and additions at the rear of a building must not reproduce or match a building which in terms of its height, bulk, scale and detailing is inappropriate to the heritage character of the area. As such, the proposal should not relate to or rely on the alterations and additions made previously to 64 and 66 Cameron Street. The original roof forms are important features of the terrace house and the skillion roof.

  7. The proposal therefore has an unacceptable impact on the Paddington Heritage Conservation Area and also does not comply with Section C1.4.1, controls C1 and C3 of Woollahra DCP in relation to Principal Building Form.

Findings

  1. With the benefit of a site inspection and an understanding of the expert evidence, I am satisfied that the conclusions of Ms Colville should be accepted for a number of reasons.

  2. First, and accepting that terrace housing forms an integral part of the Paddington Heritage Conservation Area, DCP 2015 identifies that terrace housing has two distinct roof forms (C1.4.4) first, a roof pitched both ways from a centre ridge and second, a skillion roof concealed behind a parapet at the street frontage. The existing roof form for the Bowes Terrace Group is the latter, as is the similar group of terraces on the opposite side of Bowes Avenue. I agree with Ms Colville that the mixing of the two different roof forms for terraces in one group of terraces is inappropriate as it diminishes the value and significance of the skillion roof form of the Bowes Terrace Group.

  3. I accept that the proposed roof form is inconsistent with Objectives O1 and O3 and contrary to Controls C1, C2 and C6 in C1.4.4 of DCP 2015.

  4. Second, I do not accept that the alterations and additions to the terraces at 64 and 66 Cameron Street in the Bowes Terrace Group provide any valid support for the proposed roof form. The alterations and additions that converted the two terraces into a single dwelling and provided a room that it visible above the parapet were approved around 30 years ago and before the current planning controls. The additional room and its ability to be seen from the public domain is particularly jarring in the heritage context of the Bowes Terrace Group and any further alterations that further depart from the traditional roof form should not be approved.

  5. Third, and while it was generally accepted that the proposed roof form will not be obvious from the public domain of Cameron Street and Bowes Avenue; this is not the only consideration in assessing its suitability in the Paddington Heritage Conservation Area. While the evidence focused on the impact from the public domain, I note that the definition of streetscape in Part A of DCP 2015 also includes the “private domain” and with the benefit of the site inspection, the proposed roof form would be visible from the upper levels of some nearby properties, particularly on the opposite side of Cameron Street.

  6. Fourth, and though it was submitted that much of the integrity of the Bowes Terrace Group has been lost through the additions to the rear of the terraces, particularly when viewed from Bowes Avenue; this submission must be rejected. I agree with Ms Colville that LEP 2014 and particularly DCP 2015 provide the opportunity to allow dwellings in the Paddington Heritage Conservation Area to be modified to allow contemporary living however the extent of any modification is necessarily limited because of the heritage context. Like what is proposed in the subject application, other terraces in the Bowes Terrace Group have single storey extensions to the rear of the terraces.

  7. For the reasons in the preceding paragraphs, I am satisfied that the proposed attic will unacceptably impact on the Paddington Heritage Conservation Area and pursuant to cl 5.10(1)(b) of LEP 2014, this part of the application should not be approved. Consequently, condition C1.1(a) should remain.

Orders

  1. The orders of the Court are:

1. The appeal is upheld.

2. DA No. 562/16 for alterations and additions to an existing terrace house at 60 Cameron Street Edgecliff is approved subject to the conditions in Annexure A.

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

_____________

G Brown

Commissioner of the Court

Annexure A (472 KB, pdf)

Decision last updated: 24 January 2018

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