Cracknell Lonergan Architects v Woollahra Municipal Council and Margaret Butler v Woollahra Municipal Council

[2008] NSWLEC 1528

Land and Environment Court

of New South Wales

CITATION:	Cracknell Lonergan Architects v Woollahra Municipal Council and Margaret Butler v Woollahra Municipal Council [2008] NSWLEC 1528
PARTIES:	APPLICANT Cracknell Lonergan Architects Margaret Butler RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	11061 of 2008; 10682 of 2008
CORAM:	Tuor C
KEY ISSUES:	Section 96 Application :- and Order for works carried our without consent impact on heritage significance of Conservation area whether replacement elements infill development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Paddington Heritage Conservation Area Development Control Plan
DATES OF HEARING:	21/11/2008
EX TEMPORE JUDGMENT DATE:	24 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor of Pikes Lawyers RESPONDENT Mr P Rigg, solicitor of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

24 November 2008

11061 of 2008 Cracknell Lonergan Architects v Woollahra Municipal Council
10682 of 2008 Margaret Butler v Woollahra Municipal Council

JUDGMENT

1 These are two appeals that relate to an existing terrace house at 98 Windsor Street, Paddington (the site), which is part of a group with the adjoining terrace at 96 Windsor Street.

2 The parties agree that the appeals could be heard together.

3 Appeal No. 11061 of 2008 is an appeal against the refusal by Woollahra Municipal Council (the council) of an application under s 96 of the Environmental Planning Assessment Act 1979 (the Act) to modify a development consent (DA47/2006/1) for alterations and additions to the existing house. The s 96 application seeks approval for works carried out without consent. These works include new:

· frieze to the first and ground floor barge boards,

· balustrade to the first floor balcony,

· solid core front entry door,

· palisade front fence and gate.

4 The works have been constructed in a contemporary style which council contends is not consistent with the architectural style of the Victorian terrace.

5 Appeal No. 10682 of 2008 is an appeal against Order 90/2008 issued by the council to comply with the development consent by removing the works carried out without consent.

6 The site, its locality, the history of the application and the Order and the planning controls are in the Statement of Facts and Contentions and the Statement of Facts and Contentions in Reply.

7 A conference under s 34 of the Land and Environment Court Act 1979 was conducted on site. Agreement was reached on a number of matters but no agreement was reached on the front door, fence and gate. The s 34 conference was terminated and the parties agreed to the proceedings being disposed of under s 34(4)(b).

8 The parties agreed that the evidence on site of the experts, Mr P Lonergan, for the applicant and Mr G Fotis, for the council, the resident evidence and the site inspection are admissible in the proceedings now before the Court.

9 The parties agreed that the application would be amended to reflect the agreement reached during the s 34 conference on the following matters:

i) The balustrade and friezes are to be detailed as shown in façade option A (exhibit A). This will include the depth of the frieze to match that of 96 Windsor Street and is to be cast lace work to match the balustrade. The friezes and the balustrade are to be painted.
ii) The height of the brick pillars of the fence can remain.
iii) The colour of the house can remain.

10 The key dispute between the parties that remained unresolved was whether the front fence and gate and the front door would adversely impact on the heritage significance of the conservation area. The experts agreed that there was no approval to remove and replace the front door under the development consent. The development consent approved the removal of the previous concrete front fence and its replacement with a “traditional palisade fence”.

11 Mr Fotis did not object to the removal of the previous front door and fence, provided that they were replaced with a traditional design. He considered the contemporary proposal to be inconsistent with the requirements of the Paddington Heritage Conservation Area Development Control Plan (the DCP).

12 Mr Lonergan considered that the previous fence and door were not original and there is no evidence of what previously existed, therefore each element should be treated as infill development and a contemporary solution is appropriate and consistent with the DCP.

13 Mr Lonergan and Mr Fotis difference of opinion lies in their respective interpretations of the DCP. Principally whether the proposal is infill development and whether the DCP supports a contemporary design approach.

14 Mr Fotis and Mr Lonergan set out the provisions in the DCP which they considered to be relevant in their joint statement (exhibit 5).

15 I do not accept Mr Lonergan’s interpretation that the development is infill development. The definition of infill development in Part 5 of the DCP provides that:

Infill development is new development, usually a whole building. Infill development may occur where an existing building has been demolished or where a large site has been subdivided, thereby creating a vacant lot.

16 While this definition states that infill development does not have to be a whole building, I do not agree that it is intended to relate to missing elements of the building. From a reading of the provisions of Part 4.4 and other parts of the DCP which refer to infill development I conclude that infill development relates predominantly to “new development within an existing urban context” and deals with issues of scale, form, siting as well as materials, finishes and colours for new buildings or substantial changes to buildings.

17 In particular Part 4.2.5 of the DCP refers to fences, walls and gates for both missing elements and infill buildings. It includes the following objectives and controls:

O1 To retain original fences and gates
O2 To reinstate traditional fences and gates on street frontages and side streets of an appropriate architectural style to existing buildings
…….

O4 To ensure fences and gates for infill development respond in a contemporary manner to the relevant aspects of the historic context
C5 There is to be no alteration to original fences and gates except for maintenance, reconstruction or the reinstatement of missing elements
C6 When works are proposed to the street front zone, unsympathetic fences, walls and gates must be removed and replaced by fences, walls and gates that are of a form, height, detail, materials, finishes and quality appropriate to the architectural character of the building and the group, where the building forms part of a group
C7 New and replacement fences and gates must be consistent with the architectural style of the building and be an appropriate traditional height. If part of a group, a fence must match the original fence of the group
C8 In the street front zone, traditional types of fencing permitted for Victorian or Federation buildings comprise one or a combination of the following:
· Iron or steel palisade on sandstone or rendered bases,
· timber pickets,
· low brick fences (for Federation style buildings).


…….

C13 Fences and gates on infill sites should be of a contemporary design and are to be of a form, height, detail, finish and materials that demonstrate an appropriate response to the physical and historical context of the streetscape

18 As I understand, Part 4.2.5 of the DCP seeks to retain original fences and gates and where these are missing they are to be replaced by traditional design. For infill development contemporary design is appropriate. I accept Mr Fotis evidence that the relevant objectives and controls for missing elements of an existing terrace are O2, C6, C7 and C8. Similarly, in relation to the front door, I accept that the relevant objectives and controls in Part 4.2.3 are O2 and C2, which require replacement doors to be consistent with traditional elements.

19 I do not accept Mr Lonergan’s evidence that the replacement of a missing element can only occur if there is documentary evidence of the original fence or door that existed on a particular terrace. Rather, the DCP requires that the replacement be consistent with the architectural style of the building and relies on a “pattern book” approach to terrace design where there is adequate documentation and examples of the style of doors and fences appropriate to terrace houses of a particular period. There is sufficient known evidence rather than speculation to determine the appropriate style to replace these missing elements.

20 I note that Part 2.5 of the DCP refers to contemporary design in Paddington. It states that in the case of infill development the replication of previous architectural styles is not advocated. Further it states that:

the use of contemporary design approaches, particularly for infill development, work to an intrusive building, work to the public domain and work to buildings or building elements of high heritage significance must be able to achieve a cohesive relationship between new and existing urban fabric.

21 However, I do not accept Mr Lonergan’s opinion that this can be interpreted as meaning that the DCP seeks a contemporary response to the replacement of traditional elements to the existing terrace houses where the original element no longer exists.

22 Section 4.1.1 of the DCP emphasises the important contribution that the principal building form of terraces makes to the heritage significance of the Paddington Conservation Area. This principal building form includes elements such as front fences and doors, which also contribute to the significance of the conservation area largely through their repetition and consistency.

23 The DCP recognises that loss of these elements and replacement with uncharacteristic elements will weaken the integrity of the conservation area. This was evident in the site visit where there are examples of uncharacteristic fences, which erode the conservation area.

24 In this particular case the front door and front fence that existed at the time the development consent was granted were clearly uncharacteristic and adversely impacted on the contribution the house makes to the conservation area.

25 The proposed fence and door are an improvement upon what previously existed. In Mr Green’s submission, for the applicant, the proposal will achieve a positive outcome for the conservation area when compared to what previously existed.

26 Further, Mr Green submits that the fence can be painted to match the balustrade and that planting can be provided behind the fence in a similar manner to other fences.

27 The fence of 96 Windsor Street has been altered and the proposal is not part of the group with original fences that it is required to match.

28 I am sympathetic to the approach advocated by Mr Lonergan and the changes suggested by Mr Green, I consider that the front fence and landscaping is a contemporary interpretation of a palisade fence of some merit. However, I do not accept that this is the approach espoused by the DCP, which advocates a more traditional approach, or that it meets the test in cl 28(2) of Woollahra Local Environmental Plan 1995. Clause 28(2) provides:

the council shall not grant consent to an application required by subclause (1) unless is has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the conservation area.

29 The DCP provides detailed controls of how this assessment is to be carried out and the approach to the replacement of missing elements for terrace houses. These controls have been prepared with extensive community consultation and the proposal clearly does not meet the objectives or these controls.

30 I therefore do not accept that the consent should be amended to delete the approved “traditional palisade fence and gate”, other than the pillars.

31 The s 96 application should be amended to show the balustrade and frieze in option A (exhibit A), a traditional four panel late Victorian front door, the brick pillars as built and a traditional palisade fence and gate. In the event that these plans are amended, the s 96 application could be approved and the Order would therefore no longer be required.

___________________
Annelise Tuor
Commissioner of the Court
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