Di Jones Real Estate v Woollahra Municipal Council

[2004] NSWLEC 10

Land and Environment Court

of New South Wales

CITATION:	Di Jones Real Estate v Woollahra Municipal Council [2004] NSWLEC 10
PARTIES:	APPLICANT Di Jones Real Estate RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10682 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Heritage conservation area - incentive clause impact on residential amenity parking and traffic
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995
CASES CITED:
DATES OF HEARING:	16/10/2003 and 17/10/2003
DATE OF JUDGMENT:	01/20/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles (Barrister) SOLICITORS Abbott Tout RESPONDENT Mr M Connell SOLICITORS Michell Sillar

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10682 of 2003

Tuor C

20 January 2004

Di Jones Real Estate
Applicant

v

Woollahra Municipal Council
Respondent

Judgment

Introduction

1 This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application for change of use to commercial (real estate agency) of an approved residential dwelling at unit 4, 109A Jersey Road, Woollahra.

The site and its context

2 The site is located on a prominent corner at the junction of Moncur Street and Jersey Road. It is occupied by a former church, which was built in 1877. The church ceased operation in 1987 and was extensively damaged by fire in 1989. It remained vacant for a number of years until it was converted to its current residential use. Unit 4 occupies that part of the building that was the main entrance to the church. The building is a heritage item and is within a conservation area. 3 The surrounding area is mainly residential interspersed with a number of shops and other commercial uses.

Background

4 A development application to convert the church to four residential units was approved on 14 November 1995. The residential use was not permissible within the zone, but the application was approved utilizing the incentive provisions with WLEP 1995, namely cl 32. The assessment report at the time identified that as a result of the damage from the fire and the building no longer being used as a church, its conservation would be achieved by the change to residential and that there would be no significant impact on residential amenity. In relation to parking, the proposal was approved with six parking spaces, which was fewer than that required by the Parking DCP.

5 Three of the four units are now used as residential. Unit four, while converted to residential, has not been used for this purpose.

6 The application for “ change of use from a church to commercial premises (unit 4 only)” was lodged on 26 September 2002. Council advertised the application and 14 objections and four letters of support were received. The main concerns raised in the objections were the increase in traffic and the demand for on-street parking that would result from insufficient provision of on-site parking. Concerns were also raised about the commercial use of a building within a residential area.

7 Council refused the application on 18 December 2002. An application for review under s82A of Environmental Planning and Assessment Act 1979 was also refused. The reasons for refusal formed the basis of the Statement of Issues before the Court.

Proposal

8 The proposal is to use unit four for commercial purposes, as a real estate agency. No additional car parking (there is one approved on-site space), signage or structural changes to the building are proposed. The use involves internal fit out of the unit. The proposed operation of the real estate agency was amended during the assessment of the application. The current application proposes that the hours of operation are Monday to Friday 8.30am to 5.30pm and the number of staff are limited to 10 at any one time. No auctions or leasing of properties are to be held on site. The operation of the agency is reflected in the proposed conditions of consent agreed to by the applicant.

Statutory framework

9 The site is zoned 5(a) Special uses under Woollahra Local Environmental Plan 1995 (WLEP 1995). Residential and commercial uses are prohibited within this zone. The adjoining lands are zoned Residential 2(a) and commercial uses are not permissible.

10 The site is identified as a heritage item and is within a heritage conservation area under WLEP 1995.

11 Clause 30 of WLEP 1995 permits additional uses within a heritage conservation area for buildings, which are or have been used for non-residential purposes, subject to certain criteria. The parties agreed that cl 30(5) was the relevant criteria that must be satisfied for the proposed use to be permissible. Clause 30(5) states:
The Council must not grant consent as referred to in subclause (2) or (4) unless it is satisfied that carrying out development in accordance with the consent will not adversely affect the heritage significance of the building, its site, or the heritage conservation area and will not detrimentally affect the enjoyment by an occupier of any lands adjoining or adjacent to, or in the neighbourhood of, the lands upon which such development is proposed.
12 Mr Pickles, counsel for the applicant, submitted that the proposed use could also gain permissibility under cl 32 which provides that:
Nothing in this plan prevents the Council from granting development consent to an application for consent to a use, for any purpose, of a building that is a heritage item or the land on which the building is erected if it is satisfied that:
(a) the proposed use would have little or no adverse effect o the heritage significance of the heritage item or of any heritage item group of which the item is a part, and on the amenity of the neighbouring area, and
(b) the conservation of the building will be achieved by the Council granting that consent.

13 Mr Connell, for the council, objected to the applicability of cl 32 on the basis that the applicant had sought approval for the proposal under cl 30. While I accept that it is valid to assess the application under both these clauses, in this case the main issue is whether the use will have an acceptable impact on residential amenity. This must be satisfied in both clauses, therefore if the application fails under cl 30 it would also fail under cl 32.

14 Cl 8(5) requires that:

The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of development is consistent with the such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development.

15 The parties disagreed on the applicability of this clause to the objectives of the plan. Mr Connell’s submission was that the proposal is not consistent with the objectives of the plan, in particular, 2(d)(iv) “ to improve the provision of car parking and reduce conflict between resident and visitor demands for car parking space in residential areas” and therefore the application should not be approved. Mr Pickles submission was that, while regard should be given to the objectives, they should not be given overriding weight, particularly as cl 30(2) permits commercial development “ notwithstanding clause 8” . Further, the proposal is consistent with the objectives, in particular 2(g)(iv) “ to enable the adaptation of existing non residential buildings of heritage significance in a manner which is compatible and sympathetic with the fabric and character of the building or works and the use and fabric of neighbouring lands.”

16 It is clear that the objectives of the zone do not apply to the development, as a commercial use is not permissible within the special uses zone. In relation to the objectives of the plan, I accept Mr Pickles submission. It is not necessary for consistency to be achieved with each objective but for objectives to be balanced to achieve an overall consistency. For the reasons I will discuss below I consider that the proposal is consistent with the objectives.

17 The Development Control Plan for off-street car parking provision and servicing facilities (Parking DCP) specifies the number of off street parking spaces required to be provided. Clause 6.7 of the Parking DCP deals with applications for change of use and non-conforming uses. This clause states that:

Where a change of use of a building or premises will require additional car spaces in accordance with this Car Parking Development Control Plan due to an intensification of use, the Council will require additional space to those already in existence equivalent to the difference between the requirements of the new use and the current use, provided that any deficiency in parking spaces existing at the time of the proposed change of use will be excluded from the calculation.
In respect to non-conforming uses and retail uses in Residential zoned areas, the Council will not approve any applications for changes of use which involve intensification of parking generation under this car parking DCP unless all parking spaces required for the proposed use, in accordance with this DCP can be provided on site.
18 The parties disagreed on the applicability of this clause. I accept Mr Pickles submission that, while a matter to which the Court should have regard, for applications under cl 30 of the LEP the restrictions imposed by the Parking DCP should not be given determinative weight.
Issues

19 The Statement of Issues contains seven issues which can be summarised into the following key issues:
a) whether the proposed use of a real estate agency would have an adverse impact on the amenity of the neighbourhood, particularly the increased demand for on-site parking likely to be generated by the proposal.
b) whether signage was a fundamental component to the operation of a real estate agency and would have an unacceptable impact on the heritage significance of the item.
20 The following experts gave evidence on these issues:
• For the council
  Ms D Laidlaw, town planner
  Mr C Hallam, traffic engineer
• For the applicant
  Mr A Martin, town planner
  Mr A Reisch, traffic consultant
21 The Court also heard evidence from the following residents:

Mr M Magafas, 164 Jersey Road, Woollahra
Mr D Aitken, 148 Jersey Road, Woollahra
Ms H Young, 86 Moncur Street, Woollahra
Mr J Levy, 168 Jersey Road, Woollahra
Mr R Brampton, 14 Rancliff Gardens, 62 Ocean Street, Woollahra

Residential Amenity


22 The main concern of council and the residents in relation to amenity was the demand for on street parking that the real estate agency would generate. The residents were concerned that it was already difficult to find a parking space near their house. Ms Young stated that she had become particularly aware of this over the recent months as she could not use her on-site parking space and had to find parking on the street, which she found to be very difficult at times. The other residents, particularly those without on-site parking, reiterated this experience.

23 The residents were also concerned that the additional cars generated by the commercial use would impact on the traffic in the street system. They perceived the number of cars using the roads to be increasing, particularly in Jersey Road by cars avoiding Queen Street. The residents also stated that the use would generate noise as a result of the people using the real estate agency and felt that the use was inappropriate in a residential area. Mr Levy also considered that the proposed commercial use was inappropriate for a former church.

24 In relation to noise and privacy, Ms Laidlaw considered that the proposal would “ lead to an increase in the general level of disturbance around the site, associated with the comings and goings of staff and salespeople and their accoutrements, and of customers”. She considered the main impact to be the competition for parking spaces which would cause “greater inconvenience and a reduction in amenity for residents.”

25 Mr Martin’s opinion was that the nature of the proposed use would not have an adverse impact on privacy and noise. Staff numbers and customers are limited and most of the work is off site. Unit 4 has a separate access at the corner of the site and does not overlook the other units in the development. This means that staff and customers would not impact on the other units in the development, other than to use the public footpath. The office will be used when most other residents in the neighbourhood are at work thereby minimising conflict between pedestrians and cars.

26 The traffic experts agreed that the number of car movements generated by the proposal would not be likely to have an adverse impact on the traffic system. However, in Mr Hallam’s opinion “the proposal would very substantially increase traffic movements, but the impact might not be significant in traffic engineering terms.”

27 The parking issue can be broken down into three key components, namely the demand for parking generated by the development, the capacity of the streets to satisfy this demand and the impact on the neighbourhood.

28 The experts agreed that under the Parking DCP the real estate agency would generate a demand for parking for seven cars. One space is provided on site. Therefore the proposal has a shortfall of six spaces. The experts disagreed on whether any credits should be granted for the existing shortfall of the approved residential use. Mr Reisch’s opinion was that the residential use was approved with a shortfall of three spaces and that the increased demand for on street parking should be reduced by this amount ie the demand would be for three spaces. Mr Hallam did not think it was appropriate for credits to be given on the basis that the proposal was a non-conforming use within a residential area and under the Parking DCP all parking is to be provided on site. Mr Hallam also stated that under the RTA guidelines there is no automatic right to credits.

29 In relation to whether the demand for either three or six additional spaces can be accommodated in the existing street system, the experts did not agree on the accuracy of the survey of the existing capacity that was undertaken on behalf of the applicant. The survey estimated the supply of car spaces within a 150m cordon of the site to be 380 spaces whereas Mr Hallam’s estimate ranged from 325 spaces to 314 spaces, depending on the size of car spaces. Nevertheless, assuming a worst case scenario of 314 spaces, Mr Hallam’s opinion was that there would be one period between 9am to 5pm when there would be no spaces available within a 150m cordon of the site. However, 6 spaces would always be available within the 400m outer cordon which, the experts agreed, is an acceptable walking distance.

30 The key question to be answered is whether the demand for off street parking as a result of the proposal would “detrimentally affect the enjoyment by an occupier of any lands adjoining or adjacent to, or in the neighbourhood” . Mr Pickles submission is that a “ detrimental effect” would be one that is measurable, not fleeting and would result in a consistent or at least frequent unavailability and competition for parking spaces. I accept this submission.

31 Regardless of whether credits are granted or the different figures for existing car parking spaces, the evidence of both traffic experts is that the existing capacity can satisfy the increased demand for on street parking generated by the development. While the development will increase the demand for on street spaces this will not result in a detrimental impact ie a consistent or frequent unavailability of parking spaces . There is already competition for on street parking at different times of the day and residents without on-site parking sometimes experience inconvenience as they search for spaces. However, based on the evidence, the proposed development will not exacerbate this situation to the extent that it does not meet the criteria in cl 30(5).

32 Clause 30 clearly envisages that in conservation areas commercial uses will occur within residential areas provided there is no detrimental impact on amenity. The nature of existing buildings within conservation areas means that it is likely that parking on site would not be able to be provided to satisfy the requirements in the parking DCP. This is demonstrated by commercial development in the area where restaurants, art galleries and shops do not provide parking but contribute to the mixed and varied nature of the area.

33 The proposed commercial use will have more impact than the approved residential use. Clause 30 does not require that this be considered, but only whether the proposed commercial use would have a detrimental impact. For the reasons outlined above I accept that the proposed real estate agency will not have a detrimental impact and meets the requirements of cl 30.

Signage


34 The proposal does not involve any alterations to the exterior of the building. The original application included a proposal for two flagpole signs off the front of the building. These were subsequently deleted and the applicant states that no signage is required and has accepted a condition to this effect. Council was concerned that signage was a fundamental part of the operation of a real estate agency and that it would not be able to operate commercially without some form of business identification. Mr Connell submitted that if signage were fundamental to the operation of the real estate agency it was necessary to assess whether it would adversely affect the heritage significance of the building, its site, or the heritage conservation area s to determine whether the proposal satisfied cl 30(5).

35 Mr Pickles submission was that signage was not part of the current application and therefore did not need to be considered. If, at a later time, signage were proposed it would need to be separately assessed. Further, there were examples of real estate agencies with no or little signage operating in heritage buildings. 36 I accept Mr Connell’s submission but only to the extent that it is relevant to consider whether signage per se would have an unacceptable impact on the heritage significance of the item. For example if the external expression of a commercial use through signage were to adversely affect the significance of the building because of its former use as a church. The evidence of Ms Laidlaw is that this is not the case and that it may be possible for signage to be placed on the building. In her opinion it should be considered as part of the current application and would need to be recessive and subdued, such as a brass plaque.

I agree that if signage were required it should form part of the current application. However, no signage is proposed and the applicant has indicated that it is not required for the successful operation of their business and has accepted a condition to this effect. On the basis, I accept that the proposal does not adversely affect the significance of the item and meets cl 30(5).

Conditions

37 The parties disagreed about two conditions. Condition 1 related to approval of the internal fit out of the premises. This fit out has already been undertaken and largely consists of workstations. Mr Martin’s opinion was that the fit out did not impact on the fabric of the item, is not visible from the exterior of the building and does not cross any window openings. I accept that the condition is therefore unnecessary and should be deleted. 38 Condition 11 relates to the requirement to provide disabled access. Both Ms Laidlaw and Mr Martin considered that it would be difficult to provide disabled access to the building without impacting on its significance. Mr Martin thought that in these circumstances the condition should be deleted. While I accept that it may not be feasible to provide disabled access, the evidence before the court does not demonstrate that the feasibility of providing such access has been fully exhausted. The condition, in an amended form, has therefore been retained.

Orders

1. The appeal is upheld.

2. Development application No 795/2002 to use unit 4 at 109A Jersey Road, Woollahra, for commercial purposes (real estate agency) is determined by the grant of development consent subject to conditions as set out in Annexure “A”.

3. The exhibits, except exhibit 7, may be returned.

Annelise Tuor

Commissioner