Daniell v Woollahra Municipal Council

[2007] NSWLEC 53

Land and Environment Court

of New South Wales

CITATION:

Daniell v Woollahra Municipal Council [2007] NSWLEC 53

PARTIES:

APPLICANT
Ruth Daniell

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10614 - 10619 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Application :- alterations to provide off street parking spaces to group of houses within conservation area
impact on heritage significance of conservation area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

24/10/06

 
DATE OF JUDGMENT: 

27 February 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
Solicitors
Spiegel & Associates

RESPONDENT
Mr M Connell, solicitor
of Home Wilkinson Lowry, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

27 February 2007

10614 - 10619 of 2006 Ruth Daniell v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: These are appeals against the refusal by Woollahra Municipal Council (the council) of 6 development applications to provide off street parking at 23 – 33 Glebe Street, Edgecliff (the site). The appeals and development applications are as follows:

· Appeal No 10614 (DA 05/0202) 23 Glebe St, Edgecliff

· Appeal No 10615 (DA 05/0203) 25 Glebe St, Edgecliff

· Appeal No 10616 (DA 05/0206) 27 Glebe St, Edgecliff

· Appeal No 10617 (DA 05/0205) 29 Glebe St, Edgecliff

· Appeal No 10618 (DA 05/0200) 31 Glebe St, Edgecliff

· Appeal No 10619 (DA 05/0204) 33 Glebe St, Edgecliff

2 The parties agreed that the appeals should be heard together.

3 For the reasons set out in this judgment I have concluded that the appeals should be dismissed and development consent refused.

The site and its locality

4 The site is a row of six semi detached Victorian cottages on the southern side of Glebe Street. The cottages are elevated above street level and are clearly visible from the street. However, the existing retaining wall with a timber fence above restricts views of the front gardens from the street. The cottages and front gardens have been altered; 27 – 33 have substantial rear additions which are visible from the street, although the single storey appearance of the group is maintained. There is no rear lane access and off street parking is currently not available to any of the cottages.

5 Glebe Street is closed at its eastern end with a park which separates it from Thorne Street. Glebe Street is a mixture of groups of terraces and single storey cottages of consistent character. A few houses in the street have off street parking. Glebe Street runs into Cameron Street which has a number of more recent developments intermingled with one and two storey terraces, semis and houses. A number of houses in Cameron Street have off street parking at grade and the character of this street is more varied than that of Glebe Street.

6 The Edgecliff Shopping Centre and railway station are near the site.

The proposal and its history

7 Each application proposes to:

· Demolish existing fences, garden walls and veranda sub walls

· Excavate front yard areas

· Construct new foot path cross overs, gates, fencing and sub walls

· Provide new vehicle hard stands and landscaping works

8 Although submitted as six separate applications all owners of the properties have agreed to a condition which would require the owners to lodge one construction certificate application for all the properties and for the works to be completed within 12 months. The purpose of this condition is to ensure that although separate applications they are implemented concurrently and that a consistent approach to parking is achieved.

Planning Framework

9 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is permissible within the zone with consent. The site is within the Paddington Conservation Area. Cl 28 requires a consideration of the impact of the proposed development on the heritage significance of the conservation area.

10 Paddington Development Control Plan 1999 (the DCP) provides specific controls for the Paddington Conservation Area. In Particular Part 5.2.6 deals with on site parking. The relevant objectives are:

O1 to conserve original elements and structures on street frontages and laneway boundaries

O2 To locate vehicle parking at the rear of properties, off laneways instead of along street frontages

O6 To retain sandstone kerbing on streets and laneways

O7 To provide a balance between vehicle parking on sites, soft landscaping and usable open space

11 The relevant Controls and Guidelines are:

G1 Provision of on-site parking areas, parking structures and servicing areas such as loading facilities will not be a general requirement by Council and may not be permitted in certain circumstances. In addition to the circumstances listed in the following guidelines controls, on-site parking may not be required or may not be permitted for the following reasons:

· The parking of a vehicle will have detrimental impact on the amenity of adjoining properties, the architectural character of the building, the character of the streetscape or the laneway;

· Vehicle entries and exits will have a detrimental impact on pedestrian movements or traffic movements; or

· Inadequate sight distances will result in unsafe vehicle movement to and from the site.

G2 No further vehicle cross overs are permitted off street frontages

12 Other parts of the DCP also relevant to the application and raised in the Statement of Issues include:

4.1 Kerbs & Gutters.

Objectives
O1 To retain the original sandstone kerbs and gutters where possible.

Controls and Guidelines
G1 All original sandstone kerbs and gutters should be retained where possible. If sandstone kerbs and gutters are required to be removed (for example in instances of new crossovers) they should be stockpiled for reuse in the new works.

5.1.1 Street Frontages

Objectives
O1 to retain the original street front elevations, yards and fences.

O4 to promote design that conforms to the existing character of the area.

O6 to retain the distinctive characteristic of groups of buildings

Controls and Guidelines
G1 There is to be no alteration or additions made to the original forms, details and materials of street frontages, except for:

· Restoration and reconstruction, where this is undertaken with appropriate skills and where the new materials are similar to the original in profile, size and finish;

· The reversal of unsympathetic alterations, where this is based on research not conjecture. The work should reinstate appropriate detail in the manner outlined for restoration work;

· The improvement of the streetfront elevation of non-contributory buildings or elements. Applications will require a professional assessment of buildings and the streetscape; and

· Where sites are of such width to enable development at the sides. In such circumstances, no new structures are to be built forward of the existing building line.

G4 Where a building forms part of a group, any work to the street front zone must be designed to acknowledge the contribution and relationship of that building to the other buildings or building which comprise the group.

5.1.5 Site coverage, Setbacks & Levels

Objectives
02 To retain established building alignments, setbacks and levels.

03 To ensure that new development responds appropriately to established alignments, setbacks and levels.

04 To ensure that the siting of new development responds appropriately to levels established by relevant historic development in the streetscape.

05 To retain and protect front yards and their significant fabric.

Controls and Guidelines
G1 Existing setbacks on street frontages are to be maintained.

G4 New residential structures are not to be built forward of existing building alignments.

5.3.1 Single Storey Buildings

Objectives
O3 to conserve the setting of single storey buildings

13 Other relevant parts of the DCP are 5.1.6 Landscaping and Private Open Space; 5.2.11 Gardens and Significant Trees and 5.2.4 Verandah and Balconies.

The evidence

14 The Court visited the site and received Statements of Evidence from the following experts:

15 For the Council

· Ms L Thom, heritage architect

· Mr W Turner, planner

16 For the applicant

· Mr G Patch, heritage planner

· Mr M Ball, planner

17 The court heard evidence on site from Mr J Mant, President of the Paddington Society. Ms M Derewlany, 35 Glebe Street, provided evidence in Court. Both objected to the application for similar reasons to those raised by council.

The issues

18 The Statement of Issues for each appeal contained 11 issues. The issues in relation to excavation and a construction management plan (Issue 2) and the operation of the front gates (Issue 10) were resolved by conditions. The remaining issues can be categorised as whether the proposal will adversely impact on the streetscape and on the conservation area.

19 The heritage experts agreed that the houses form a unified group that make a positive contribution to the Paddington Conservation Area. The key difference between the heritage experts was whether the proposal would adversely affect the significance of the conservation area. Mr Patch’s opinion was based on the degree of alteration to the houses, their front yards and context. He stated:

There is little by way of apparent original form and fabric to the front yards of the subject single storey terraces.

Most show evidence of substantial alteration to the front gardens, in terms of both the terracing and material of the various elements, including the fencing sub-retaining walls (with the possible exception of that to N° 25 Glebe Street), steps, front and party fencing. The verandah sub-walls also appear to have been altered in a number of instances.

The existing character of the area is mixed, with late-Victorian development interspersed with newer development. Glebe Street is substantially a late Victorian streetscape which has been adversely impacted upon through the demands of on - street parking.

It is apparent that a number of the single storey terraces in the group (which is, in fact a group of 4 – Nos 27, 29, 31 and 33, and a pair – Nos 23 and 25) have been the subject of substantial alteration. In general terms, their façade compositions are seemingly original in a general sense, but there have been changes to fenestration, and verandah detailing, together with re-facing of some of the masonry elements.

The distinctive character of the “group” is their identifiable late-Victorian single storey terrace beginning. While this is still identifiable, it has been confused through the piecemeal changes.

20 Mr Patch considered that the proposed development would restore consistency to the group by treating each house in the same way. He considered that the single storey appearance of the houses and their setting would be maintained. He stated:

Given the range of measures proposed, the overall impact on the setting of the subject single storey building(s), and the streetscape and the conservation area in general will be positive. Some 5 vehicles will be removed from the street and 6 accommodated within the subject properties In an arrangement that will provide some screening of the vehicles and consistency of presentation in the front yards of the properties. While this will entail change to the setting of the single storey terraces, the overall impact on the streetscape and the conservation area will be beneficial.

21 Ms Thom recognised that the houses had been altered and original fabric had been removed but considered that sufficient significant elements remained to maintain their consistency as a group. She stated:

The area of most alteration are the elevated front yards of the group which vary in degrees of intactness, however each property has retained its solid base wall under the verandah and the retaining wall and fence on the boundary thus maintaining its streetscape appearance. The group maintains the significant elements that make it distinctive as a group and contributory to the significance of the Paddington conservation area.

22 Consequently Ms Thom drew different conclusions as to the acceptability of the proposal. She was particularly concerned that:

The proposed development excavates the entire yard and the area under the verandah to foot path level. This will have a substantial physical and visual impact upon the group of houses. The historic and established levels and the building setback will be lost in the proposed development.

23 Mr Patch and Ms Thom held different opinions about the removal of the sandstone kerbing. The DCP provides that where possible original sandstone kerbs and gutters should be retained. In Ms Thom’s opinion the sandstone is already in a weathered condition and too fragile to be reused at an angle in the vehicle crossing. Mr Patch contended that this could occur and will ensure that the kerbing is retained, albeit in an adapted form.

24 Mr Ball recognised that the DCP controls applied to the site, however, he considered that its location in Edgecliff distinguished it from the characteristics of the Paddington conservation area as described in the DCP. He outlined the following distinguishing factors:

The substantial new and infill redevelopment which has occurred since the 1970s when the area was sold by the Glebe Administration Board.
The plethora of open and covered parking spaces at the frontages of such redevelopments, and existing dwellings.
Proximity of the Edgecliff Centre/railway station and the parking demands created.
The narrow roads and constrained kerbside parking.
The lack of continuous, extensive, and cohesive building forms more characteristic of Paddington.

25 In Mr Ball’s opinion the context needed to be considered in applying the DCP controls. He stated that:

The proposal will be in character in the context of this area where open front carparking is a characteristic and obvious element in the streetscape of Edgecliff.

26 Mr Ball agreed with Mr Patch that the front yards had been significantly altered. He considered the car parking would be screened from view and the proposed front fencing would provide a unifying element in the streetscape.

Findings

27 The site is within the Paddington conservation area. While it is located on the edge of the conservation area and is near the Edgecliff centre and streets where recent unsympathetic development has occurred. Glebe Street itself and the group of houses make a positive contribution to the conservation area and the DCP controls are relevant and must be considered.

28 Mr Turner and Ms Thom did not agree with Mr Ball’s assessment of the site’s context. They recognised that Cameron Street contained recent development and open front car parking, but considered that Glebe Street was relatively intact. Mr Patch also agreed that the houses made a positive contribution to the Paddington conservation area.

29 The site’s immediate context is Glebe Street. The character of this street is not one where there is a plethora of open and covered parking spaces at the frontages. The street retains the Victorian streetscape character of the Paddington conservation area. On this basis the DCP controls are as relevant to Glebe Street as to streets in Paddington.

30 Although the houses and their front gardens have been altered and original fabric removed, they maintain their single storey appearance and the relationship between the house, front yard and the street. None of the front yards have been wholly excavated to ground level and while some of the terracing, retaining walls and planting are detracting elements, the key significance of the houses, as recognised by Mr Patch, as a group of single storey houses is maintained.

31 The proposal excavates the entire front yards to street level. The proposal also excavates under the front verandah some 1.3 m to provide sufficient depth for a car. Each application treats each of the houses in the same manner. If implemented concurrently a consistency in the treatment of the houses would be achieved. I accept that this has advantages and I also accept that the manner in which the car spaces it to be provided has been undertaken with a degree of sensitivity. However, I do not accept that this is sufficient reason to depart from the requirements of the DCP.

32 The DCP objectives clearly seek to maintain the significance of the conservation area by measures such as:

O1 To retain the original sandstone kerbs and gutters where possible (4.1)

O1 To retain the original street front elevations, yards and fences (5.1.1).

02 To retain established building alignments, setbacks and levels (5.1.5).

O3 To conserve the setting of single storey buildings (5.3.1)

33 The proposal removes any original fabric which remains but more importantly changes the level of the front yards and therefore the setting of the houses in such a manner that their single storey character would be removed. Although screened to some extent by the proposed fence, the excavation of the site and below the balcony would establish a base to the buildings and give then a two storey appearance. This degree of change will adversely impact on their significance and that of the conservation area and on this basis the applications must fail.

34 The DCP recognises that on site parking can have an adverse impact on the significance of the area and may only be provided in certain circumstances. It does not support the provision of parking in front setbacks or the introduction of new crossovers. The proposal clearly does not comply with these controls and the impacts on the streetscape outweigh any potential benefits to the owners of the properties.

35 I do not accept the opinion that the removal of the cars from the street would be a visual improvement. The cars will clearly be visible through the new fence. The appearance of cars on a street has significantly less impact on the streetscape than those within a front yard. It is a normal expectation for cars to be parked on a street, particularly in areas such as Edgecliff. Further, the amenity of the street itself will be degraded by the provision of six crossovers in close proximity to each other. The removal of the sandstone kerbing, although intended to be reused in the cross over, does not overcome the provision of six crossovers and the unacceptable impact on the streetscape or the loss of the sandstone kerbing in its original location.

36 While not raised as an issue by council, the residents were concerned with the removal of five on street parking spaces and the provision of six off street spaces. From the evidence provided to the Court I do not consider that this issue has been adequately addressed. The six spaces will clearly be of considerable benefit to the owners of the houses and there will be a net increase in one space. However, from the available evidence it is not clear the impact that the removal of the spaces will have on the demand for parking in the street for other residents and visitors. The potential loss of public on street parking is a valid consideration in development applications of this nature particularly where on street parking is at a premium.

Orders

37 For the above reasons the Orders of the Court are:

1. The appeals are dismissed.

2. The development applications for off street parking at 23 – 33 Glebe Street, Edgecliff, are refused.

3. The exhibits may be returned.

__________________
Annelise Tuor
Commissioner of the Court