Collier v Woollahra Municipal Council

[2008] NSWLEC 1310

Land and Environment Court

of New South Wales

CITATION:

Collier v Woollahra Municipal Council [2008] NSWLEC 1310

PARTIES:

APPLICANT
Suzanne Collier

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10335 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Section 96 Application :- contributory item in conservation area, new vehicle cross over, compatibility of garage door with heritage significance, and garage within building envelope

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

18 July 2008

EX TEMPORE JUDGMENT DATE:

18 July 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr Green, Solicitor,
of Pike Pike and Fenwick

RESPONDENT
Ms J. Hewitt
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Hoffman C

18 July 2008

10335 of 2008 Suzanne Collier v Woollahra Municipal Council

1 This is a Class 1 Appeal No. 10335 of 2008 between Collier and Woollahra Council in regard to the refusal of a s.96 application to put a single garage at the rear of No. 2 Ocean Street, Woollahra. The matter was dealt with via s.34(3)(b)(ii) hearing under the Land and Environment Court Act, 1979.

2 The house is a large two storey terrace on the corner of Ocean Street and John Street. It forms a group of Federation terraces with No.s 2, 4, and 6 Ocean Street. The side elevation to John Street has two elements, the dominant element is a large two storey gable end and front verandah, occupying about 13 m of the side boundary. The recessive element is a rear two storey pitched roof wing about 7 m long and set back 2 m from the street boundary. There is a high masonry wall on the side boundary extending from the dominant front element through to the rear boundary. It creates a courtyard between the street and the rear wing.

3 Council has previously approved alterations and additions to this recessive rear wing that changes the uses and layout of the ground floor rooms. The existing approval includes the family room at the rear of the building that is partly in the rear wing and partly occupies a section of the Courtyard between this rear wing of the house and the side boundary wall to John Street.

4 The s.96 application is de facto to change this family room to a carport by putting a sliding timber garage door in the boundary wall and opening the carport to the Courtyard to enable dual use when the car is not in it. The original s.96 application was for an enclosed garage with a high roof. The amended plans in Exhibit B show the roof at a much lower level than originally and is virtually similar to the approved family room roof.

5 The essential issues in this case are conflicts with the Council Heritage Development Control Plan due to the footpath vehicle crossing and the garage door.

6 Whilst loss of carparking was thought to be an issue the applicants’ traffic engineer showed that due to the kerb space and parking signs in John Street, the drive crossing does not reduce on-street parking, but in fact adds a car space to the local parking capacity by putting an extra one on this site.

7 The conflicts with the Heritage Development Control Plan arose out of the site being a contributory item in the conservation area. It is not a full heritage item. Part of its value comes from being in the group of Federation terraces in Ocean Street that is unaffected by this development application. Another part of its value is its contribution to the character of the area and the John Street streetscape.

8 John Street has a number of other contributory items, many of which have garages and the respondent said that the garages are detrimental to the Victorian/Federation streetscape and the Development Control Plan has been aimed at preventing more garages.

9 The applicant pointed out that most of the buildings items had their garages when the conservation contributory item status was given to them. They remain contributory in spite of the garages as this proposal would. Indeed, the Council had also approved several of the contributory items to be demolished and replaced with new houses having garages.

10 During the walk along the street I would have to conclude that all of the garages seen existing, with perhaps the exception of No. 80, would be more prominent than this amended proposal would be.

11 The only objective said to be conflicted with in the DCP, apart from conflict with the spirit of preventing any more new garages, was said to be cl 3.4.9 objective 01:

"to ensure residential buildings rather than vehicle access and parking structures remain the dominant elements in the streetscape."

12 As put by the applicants heritage expert: “This proposal is so small an element in the host building, that it could never be said to dominate it in any way let alone the streetscape. As put by the applicants heritage expert: “This proposal is so small an element in the host building, that it could never be said to dominate it in any way let alone the streetscape.”

13 In looking at the elevation to John Street that is about twenty metres long and 10 metres high, the garage door, is the only visible element additional to the roof of the approved family room. The garage door is 2.4 m x 2 m. It is located at the far end of the recessive element of the façade. Whilst arithmetic comparisons do not necessarily reflect impact, in this case I believe it can be used as a measure. The garage door would be roughly about 3-4 % of the area of the John Street façade.

14 The Development Control Plan does say no new drive crossings in streets will be allowed.

15 I accept the applicants submission that such a control should apply in existing streets where none or very few drive crossings exist. Such as in other streets at Paddington, where the rows of terrace houses should remain intact. John Street is not such a street.

16 The respondent says cars are not characteristic of the Federation period and the garage does extend to the street boundary and intrudes into the house - all not favoured by the Development Control Plan.

17 However, I must observe that the approved family room occupies the same space as the proposed carpark, except that the family room is screened from view except for its roof by the John Street boundary wall of the Courtyard. It seems to me Council saw fit to approve the family room because it would not be an intrusive development that would affect the Federation façade.

18 I am satisfied that the garage door seems so small in such a discreet location in a side elevation, and at the end of the recessive element of that side elevation that it will not disturb the Federation character such that it should be refused.

19 The particular design and sensitivity and uniqueness of the building itself and the character of John Street is unlikely to lead to any precedent for cumulative effect as a result of such an approval and therefore should not prevent the approval. The parties agreed to draft conditions as hand annotated in Exhibit 2.

20 Therefore the orders of the Court are:

1. The s.96 application appeal is upheld.

2. That development consent is granted to amend DA 376/2006/2 for No. 2 Ocean Street, Woollahra as shown in drawings in Exhibit D of this appeal, all subject to conditions in Annexure ‘A’ attached hereto.

3. The exhibits are returned to the parties except Exhibit A, B and 2.

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