Capital Accommodation v Woollahra Council

[2006] NSWLEC 427

Land and Environment Court

of New South Wales

CITATION:	Capital Accommodation v Woollahra Council [2006] NSWLEC 427
PARTIES:	Applicant: Capital Accommodation Pty Ltd Respondent: Woollahra Municipal Council
FILE NUMBER(S):	11449 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- modern building form in conservation area
DATES OF HEARING:	13/07/2006
DATE OF JUDGMENT:	07/27/2006
LEGAL REPRESENTATIVES:	Applicant: Mrs M Taylor, solicitor of Norman Waterhouse Respondent: Mr M Connell, solicitor of Home Wilkinson & Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

27 July 2006

11449 of 2005 Capital Accommodation Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application to demolish the existing building and erect seven attached dwelling houses on lot 1 DP 357357 and lot 1 DP 430688, known as 1 Underwood Street, Paddington.

The site

2 The site of 1,160m2 now contains a two-storey building known as the Police Citizens Youth Club. It is located where Underwood changes directions. The site’s long frontages are to Heeley Street and Heeley Lane. The site falls almost 7m along its 50m length. The existing building is in brick, inconsistent with surrounding development and agreed by all to be unattractive.

3 The only adjoining property is No 1 Heeley Street, which is a terrace house. At the common boundary there is an existing stone retaining wall, which will remain. Development along Heeley Street is traditional Paddington terraces stepping down the hill. Closer to the site, on the other side of Underwood Street are two modern apartment blocks (one three-storey, the other four-storey) and the heritage item Juniper Hall.

The proposal and its history

4 The applicant intends to demolish the existing building on the site and erect seven attached houses on Torrens title allotments, ranging in size from 140 to 180m2. The basement parking is partly excavated and entered from Heeley Street from a new crossing about 5m south of the existing.

5 The applicant lodged the development application with the council in September 2005 and amended plans in December 2005. Following notification, the council received ten objections. The council considered a planning report by its officers in February 2006. The report recommended approval subject to the deletion of the third storey on Terraces 1 and 2. The council did not accept the recommendation and refused the application. The applicant filed the appeal in December 2005 against deemed refusal.

Relevant planning controls

6 Woollahra Local Environmental Plan 1995 zones the site 2(a). The proposal breaches two development standards in the LEP: height and allotment size. The council raises no objection to upholding a variation of these standards under State Environmental Planning Policy 1. The Paddington Development Control Plan 1999 establishes more detailed controls, none of which are subject to dispute.

The issues

7 The council’s Statement of Issues contains twelve issues. However, at the commencement of the hearing the council’s advocate, Mr M Connell, said that only one issue remained between the parties, namely the council’s request to impose a condition requiring the deletion of the third floor bedrooms on Terraces 1 and 2.

The experts

8 At the request of the parties the Court had appointed Mr S Davies as the expert on heritage and Ms J Bindon as the planning expert.

The objectors

9 During the site view the Court heard the evidence of five objectors. Ms S Tangkhantiwiriya, who lives at 1 Heeley Street adjoining the development, said that her concerns were about excavation and drainage. These concerns are catered for by the council’s requirement for a dilapidation report on her property and the arrangements for drainage that are far superior to those of the existing building on the site.

10 Mr P Brady, who lives at 7 Ormond Street and whose rear yard faces to Heeley Lane, said that he was concerned about overdevelopment and visual impact, particularly of the two bedrooms in dispute. Mr Brady’s property will lose some view of the sky as a result of the proposal; however, in the view of the Court-appointed experts, the loss will not be major.

11 Ms A Stuckey, who lives at 25 Ormond Street, somewhat removed from the development, said that her concerns were about loss of privacy and drainage. The Court-appointed experts did not think that the impact on her property would be major.

12 Mr D Halloran, who lives at 7 Heeley Street, said that his remarks were not in objection but in concern that the development should be the best possible. Mr A Woodcroft, who lives at 17 Underwood Street, said that his objections were to the vehicular access (which should be moved north), overdevelopment (the third level should be removed); and the two third-floor bedrooms on terraces 1 and 2. I note that the traffic report accompanying the application supported the driveway location and there was no expert opinion to contradict this. Neither the experts nor the council desired the removal of the third storey, with the exception, of course, of the bedrooms on Terraces 1 and 2 that were in dispute.

13 Two letters from the Paddington Society were in evidence, one from Mr J Mant, and the other from Mr J Richardson. Since they were similar and since Mr Richardson’s was of a later date, I will deal with his letter. Mr Richardson raises thirteen points, the first being that the lot sizes should not be allowed to be less than 230m2. The experts did not agree, quoting that the lot sizes around the site were mostly much less than 230m2. The second point raised the vehicular access, a matter on which I commented above. The third point is identical to the first. The fourth point is that the protection of privacy should not rely on screens. While I accept that designing the protection of privacy into a proposal is preferable to the provision of screens, in dense urban locations like Paddington (which is both high-density and low-rise), screens are often unavoidable. The fifth point is also identical to the first. The sixth point suggests that the proposal is higher than existing development in Heeley Street. The experts did not agree, saying that much of the existing development in Heeley Street reaches 9.5m. In addition, the proposal is close to three and four-storey modern apartment buildings to the south. The seventh point objects to the removal of the existing Casuarina on the site. I note that the council did not object to the removal of the tree. The eighth point suggests that courtyards should not be permitted 3m above Heeley Lane. In Ms Bindon’s opinion, the landscaped setback at 1.8m-height reinstates the lane’s character, which the existing building on the site has destroyed. The ninth point says that the impact on 1 Heeley Street is overpowering. The experts did not agree and Ms Tangkhantiwiriya did not object to visual bulk. The tenth point is that the consent should not rely on what might happen in a future basement to 1 Heeley Street. I do not understand the meaning of this point. The eleventh point is that the proposal does not follow the existing building line in Heeley Lane. According to the experts, the proposal is close enough to this line. The twelfth point is that the non-habitable spaces in the basement have a dramatic impact on the development. This appears to be a comment on the design that the experts did not find valid. The thirteenth comment is that residents will use flat roofs as terraces. The applicant has provided gravel on the flat roofs to avoid this possibility.

The third-floor bedrooms in Terraces 1 and 2

14 This remained the only dispute between the parties. The council’s planning reports indicate that the reason for which the council’s planners wished to delete these bedrooms was because the bedrooms are Inconsistent with the built form and roofscape of Paddington (Planning report of 6 February 2006, page 13). However, both Mr Davies and Ms Bindon were against this requirement, on the basis that the proposal would become too small in the context of the higher buildings around it.

15 Whether the proposal fits better with or without the third-floor bedrooms is clearly a matter of subjective judgment related to the extent to which a person is tolerant of modern building forms in an area dominated by traditional buildings. Given that Mr Davies and Ms Bindon were the experts on whom the parties agreed in this case, it seems to me that I should accept their advice, except where they have omitted to take an important matter into consideration or my own judgment is strongly against theirs. Neither is the case in this instance. For these reasons, the appeal is upheld without the imposition of draft Condition 2(b), which would require the removal of the bedrooms.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing building and erect seven attached dwelling houses on lot 1 DP 357357 and lot 1 DP 430688, known as 1 Underwood Street, Paddington is determined by the grant of consent subject to the conditions in annexure A.

3. The exhibits are returned except for Exhibits A and B.

____________________
Dr John Roseth
Senior Commissioner