Dolton v Woollahra Council
[2012] NSWLEC 1317
•07 November 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Dolton v Woollahra Council [2012] NSWLEC 1317 Hearing dates: 30 October 2012 Decision date: 07 November 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed.
2. The application to modify development consent 452/2011 is refused.
3. The exhibits, other than exhibits 2, A and B, are returned.
Catchwords: DEVELOPMENT CONSENT - appeal against a condition imposed on a development consent to delete on-site vehicle parking; impact on the heritage significance of the heritage conservation area Legislation Cited: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Category: Principal judgment Parties: Victoria and James Dolton (Applicants)
Woollahra Council (Respondent)Representation: Mr C McEwen SC (Applicant)
Mr S Simington (Solicitor) (Respondent)
Solicitors
Pikes Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 10763 of 2012
Judgment
COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act1979 against a condition of consent of Development Consent No 452/2011 by Woollahra Council (the Council) that requires on-site parking (the proposal) to be deleted, at 52 Cambridge Street, Paddington (the site).
The appeal was subject to mandatory conciliation on 30 October 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. The parties advised, following the site inspection, that there was no prospect of an agreement being reached and so the conciliation conference was terminated pursuant to s 34AA(2)(b) and a hearing held forthwith, pursuant to s 34AA(2)(b)(i).
Issues
The contention in the matter is in regard to a condition of consent, which states:
C.1 Modification of details of the development (s 80A(1)(g) of the Act)
c) all reference to the hardstand carparking area including the opening to the existing wall and associated crossing are to be deleted.
The applicant seeks to have the condition deleted and the Council's position is that the condition should be retained as the on-site parking proposal is unacceptable, for the following reasons:
- The proposal will adversely impact on the significance of the masonry wall to the Glenmore Road frontage of the site;
- The proposal will result in the loss of private open space and the remaining private open space will be below the minimum requirement;
- The proposal will lead to an adverse precedent that is likely to be replicated in the immediate vicinity and this would have cumulative impacts.
The site and its context
The site is a triangular allotment, at the intersection of Cambridge Street and Glenmore Road. The dwelling is at the end of a Victorian terrace row fronting Cambridge Street, which step down the hill towards Glenmore Road, on the western side of Cambridge Street.
The rear of the allotments of 46-52 Cambridge Street front Glenmore Road. There is a rendered masonry wall along the Glenmore Road frontage of these properties, which terminates half way along the Glenmore Road frontage of the site. The wall changes in height in response to the fall of the Glenmore Road and each step in the wall is adjacent to a gated access to each site. This rhythm has been interrupted by the construction of a garage door opening in the Glenmore Road frontage of 46 Cambridge Street.
The dwelling at 52 Cambridge Street is an elaborate and skilful design, which orientates primarily to the apex of its triangular site, towards the intersection, in acknowledgement of its uniquely configured and prominent site and its position at the bottom of the terrace row.
Background and the proposal
The proposal is to create a garage door opening and two viewing slots within the existing masonry wall fronting Glenmore Road. The wall is to be raised in height, so that the height of the wall at the boundary shared with 50 Glenmore Road continues past the proposed new opening and the step down of the wall's capping is to be positioned to the north of the proposed new opening. The proposal includes a new vehicle crossing and a hardstand area in the courtyard.
Planning Framework
The site is located within the 2(a) Residential A Zone, pursuant to Woollahra Local Environment Plan 1995 (LEP 1995) and the proposal is permissible with consent.
The aims and objectives of LEP 1995, at cl 2, include the aim of conserving the environmental heritage of the area of Woollahra.
The site is located within the Paddington Heritage Conservation Area (Paddington HCA) and the proposal is subject to the provisions of the Paddington HCA Development Control Plan 2008 (DCP 2008).
Part 3 of DCP 2008, at clause 3.1 'Kerbs and gutters' includes the following control:
C5 Vehicle crossings and chicanes should be discouraged as they interrupt the original line of the streets and sandstone kerbing.
Part 4 of DCP 2008 provides objectives and controls for existing buildings and infill buildings; for site elements and for building types.
Clause 4.1.1 of DCP 2008, 'Principal building form and street front zone of significant buildings', includes the following definition of the street front zone:
The street front zone comprises the front building elevation and visible roof, front yard, the side boundary fences in the front yard and the street boundary fence. The street front zone also has a landscaped character, with features which enhance the architectural character of the building and contribute to the historic streetscape.
Clause 4.1.1 of DCP 2008 includes the following relevant objectives:
O1 To retain and conserve the principal building forms and street front zones.
O4 To promote design that confirms to the existing character of the area.
O6 To retain the distinctive shared characteristics of groups of buildings.
08 To conserve the significant original fabric of terrace houses, terrace groups and free standing buildings of similar age and character.
O10 To retain external original fabric and features characteristic to a traditional terrace houses.
Clause 4.1.1 includes the following relevant control:
C11 Where a building forms part of a group, any work in the street front zone must be designed to retain the contribution and relationship of that building to the other buildings or building which comprise the group.
Clause 4.1.7 of DCP 2008 'Open space, swimming pools, lightwell, courtyards and landscaping' includes the following relevant objective:
O4 To ensure that provision is made for accessible and useable private open space at the rear of properties.
Clause 4.1.7 includes the following relevant control:
C4 Each dwelling-house is to be provided with private open space and deep soil landscape area in accordance with the following [refer to table]: Dwelling-house on medium sized allotment is to have a principle rear area of minimum 15m2 and minimum dimension of 3m and 8% of the site.
Clause 4.2.5 'Fences, walls and gates' has the following relevant objectives:
O1 To retain original fences and gates.
O2 To reintroduce traditional fences and gates on street frontages and side streets of an appropriate architectural style to existing buildings.
Clause 4.1.7 of DCP 2008 includes the following relevant control for the street front zone:
C5 There is to be no alteration to original fences and gates, except for maintenance, reconstruction or the reinstatement of missing elements.
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 palisades on sandstone or rendered bases
Timber pickets
C10 Breeching an original sandstone retaining wall to incorporate an opening for parking is not permitted.
Clause 4.2.6 of DCP 2008 'On-site vehicle parking, garages, carports, driveway access and servicing facilities' includes the following relevant objectives:
O1 To conserve original elements and structures on street frontages and laneway boundaries, including coachhouses, stables and rear lane toilets.
O2 To ensure that significant buildings rather than vehicular access and parking structures remain the dominant element in the streetscape.
O6 To provide off-street car parking and servicing facilities where feasible.
O8 To ensure that the amount and quality of deep soil landscaped area and private open space are not compromised by the provision of on-site parking and servicing areas.
Clause 4.2.6 includes the following relevant controls:
C1 Provision of on-site parking areas, parking structures and servicing areas such as loading facilities is not a mandatory requirement. In addition, and subject to circumstances listed in the following controls, on-site parking will only be permitted or may only be required where:
(a) the parking area, servicing area or structure will not have a detrimental impact on:
- the architectural character or significance of a building, including original coach houses, stables or rear lane toilets,
- the character of a streetscape or laneway
(b) vehicle entries and exits will not have a detrimental impact on pedestrian movements, traffic movements, Council infrastructure or service authority infrastructure,
(j) private open space and deep soil landscape area controls are met
C2 No further vehicle crossings are permitted at street frontages that form part of the street front zone.
C3 No parking is permitted on that area of the site which forms part of the street front zone or within or beneath the principal building form.
The definitions at Part 5 of DCP 2008 include the following relevant definitions:
primary frontage (corner allotments) is that part of the site in the street front zone and the part between the side street and the principal building form.
principle building form is the original front building section and main roof, which contains the main rooms.
private open space (a) in relation to a dwelling house and dual occupancy means an area of land which is appurtenant to the dwelling-house and dual occupancy and intended for the exclusive use of the occupants of the dwelling-house and located and designed so as to offer visual privacy to the occupants.
street front zone comprises the front building elevation and visible roof, front yard, the side boundary fences in the front yard and the street boundary fence.
streetscape encompasses both the public and private domain and includes the street design, its landscaping, traffic management treatments, surfaces, utility installations, all buildings abutting the street and their associated landscaping, fences, paths and driveways. The arrangement and integration of these components and their visual appearance determine the streetscape character.
side boundary fence means a fence separating allotments or on a side street, in the case of a corner site, but does not include a fence within the street front zone.
Public submissions
Two objectors provided evidence on-site and one of those objectors was representing the Paddington Society. Their concerns can be summarised as:
- The proposal will impact on pedestrian safety;
- The proposal is adjacent to the busy intersection of Lawson Street and Glenmore Road;
- The proposal will result in the loss of a parking space on Glenmore Road;
- This site has two street frontages and a new crossover is only appropriate in a laneway;
- The proposal will set a precedent for the adjoining properties to the south and the cumulative impact of four crossovers and garage doors will be significant; and
- The proposal will have a detrimental impact on character of the streetscape and the introduction of another vehicular entry will destroy the rhythm of the boundary wall.
Expert evidence
Expert heritage evidence was provided by Mr Robert Staas on behalf of the applicant and Mr James Phillips on behalf of the Council.
The masonry wall
The heritage experts broadly agree that the masonry wall fronting Glenmore Road, at the rear of 46 to 52 Cambridge Street, has been reconstructed, to some extent, re-using original bricks and new masonry and that the Glenmore Road façade of the wall has been rendered and painted. Documents were tendered (exhibit 1) from Council's files during the 1980s, which indicate that some rectification and reconstruction works were carried out.
Mr Staas says that the wall is not original and it is not a significant element within the Glenmore Road streetscape.
Mr Philips says, notwithstanding that the wall has been partially reconstructed and rendered, it has been a visual element within the Glenmore Road streetscape since the 1890s, its reconstruction has not diminished its positive contribution to the Glenmore Road streetscape and it is significant to the Paddington HCA.
According to Mr Staas, the proposal is a sympathetic modification that wont change the form of the masonry wall along Glenmore Road. According to Mr Phillips, the proposal will considerably alter one's understanding of the form of the masonry wall, as it will interrupt the rhythm of the wall.
Principal building form and street front zone
The heritage experts agree that the principal building form of the terrace house includes the majority of the fabric of the dwelling and excludes the portion of the dwelling under the lean-to roof on the western side housing the laundry on the ground floor and a bathroom on the first floor.
The heritage experts agree that the street front zone is the area defined by the palisade fence; the Cambridge Street elevation and the area at the apex of the triangular site and that the courtyard on the Glenmore Road side would have been the former service area of the dwelling and the gates in the masonry wall were for access to the night soil.
Mr Phillips says, notwithstanding that the street front zone is the eastern and northern parts of the site, this dwelling was designed to be viewed in the round. According to Mr Philips, the gabled roof over the western wing of the dwelling, fronting Glenmore Road, is at the same pitch as the main ridge (running north-south), in contrast to a conventional secondary wing at the rear of the principal building form, which has a subordinate roof form.
Mr Staas says that the Glenmore Road elevation, behind the masonry wall, is the rear of this dwelling and this is evident because the front entry is accessed from Cambridge Street, the eastern and northern elevations are more decorative and a photograph c1980 (exhibit D) shows this elevation as unrendered. According to Mr Staas, the rear gable is ancillary.
Private open space
The heritage experts agree that the concept of private open space in the Paddington context is a recent construct and the original purpose of the rear area of a dwelling was as a service yard.
The northern courtyard has been recently landscaped and the main living room of the dwelling leads out to the northern courtyard. This area has a charming mini golf putting area, with hedging along the boundary, at the apex of the triangular site.
According to Mr Staas, the northern courtyard is used as private open space and it should contribute to the calculation of private open space under the controls of DCP 2008.
According to Mr Phillips, the northern courtyard is the front garden of the dwelling and it consequently does not fit the DCP 2008 definition of private open space.
Precedent
The heritage experts disagree whether the proposal will provide a precedent for a garage door opening at the rear of the adjoining properties at 48 and 50 Cambridge Street. Mr Staas says that the while the likelihood of more garage doors is increased if this appeal is upheld, it is not a certainty and even if there are eventually four garage doors in the masonry wall, the wall will still appear as a boundary wall with openings.
In Mr Phillips opinion, the proposal, if approved, will provide a precedent for garage doors at the rear of 48 and 50 Cambridge Street and four openings in the wall will interrupt the rhythm of the wall and detract from its contribution to the Glenmore Road streetscape.
Paddington HCA
Mr Staas says that Paddington is characterised as being of heritage significance for other, more intact areas of the suburb. In his opinion, this area is not so significant that changes cannot be made.
Mr Phillips says that there are only a few heritage items within the Paddington HCA and this is because it is Council's intention to protect Paddington as a whole as a HCA and not to single out individual terrace houses as heritage items. In his opinion, DCP 2008 provides a strong set of rules and definitions for managing change within the HCA and the proposal does not comply with the intent of DCP 2008.
Findings
Principal building form and street front zone
Much of the hearing dealt with whether or not the Glenmore Road elevation formed part of the street front zone, on the basis that if it did, the proposal does not comply with the objectives of DCP 2008 and if it did not, the proposal complies with the objectives of DCP 2008. As a consequence, what is included and what is not included in the principal building form and the street front zone definitions was the focus in cross examining the experts and the submissions put forward.
The principal building form is the positive; the building itself as it presents to the street. The street front zone is the negative; the space around the building and it includes any elements that occur between the building and the boundaries.
In this case, the unusual triangular configuration of the site and northern orientation of the dwelling to the apex of the triangle results in both 'legs' of the triangle, that is both the Cambridge Street and Glenmore Road boundaries, forming part of the overall principal elevation. This is evident in the c1895 photograph (exhibit 3), taken from what is now White City looking towards the northern elevation of the dwelling, showing the Cambridge Street terrace row stepping up the hill to the left and the capped masonry wall, unrendered, with the four entry gates on Glenmore Road to the right.
I accept the heritage experts' evidence that the Glenmore Road courtyard, behind the masonry wall, is certainly the former 'service area' of the dwelling and Mr Staas' evidence that the Glenmore Road elevation is less decorative and was not originally rendered, which demonstrates that the Glenmore Road side was the 'rear'.
I also accept that DCP 2008 cannot be comprehensive and it cannot be expected to deal with each unique site configuration within Paddington. I do not think it is helpful to try and characterise this dwelling in terms of the strict definitions of front, side and rear. It has been skilfully designed to deal with its unique position at the bottom of a terrace row at a sharp intersection and rather than simply complete the row with the party wall of a terrace house, this dwelling turns and celebrates the apex of the intersection with a decorative gable end, a two-storey projecting bay window and first floor balcony on the northern elevation, all designed to be viewed in the round.
In my opinion, the masonry wall along Glenmore Road does form part of the street front zone, because it forms part of the view when looking at the northern elevation, as a function of the triangular site.
The clear intent of the relevant objectives of DCP 2008 is to conserve the street front zone and its contribution to the group and to ensure that significant buildings, rather than parking structures, remain the dominant element in the streetscape.
I am not satisfied that a garage door and associated slots in the masonry wall and raising the height of the masonry wall over the new opening, is consistent with the relevant objectives of DCP 2008.
The masonry wall
Reconstruction is defined by the Australia ICOMOS charter for the conservation of places of cultural significance (the Burra Charter), Article 1.8, as follows:
Reconstruction means returning a place as nearly as possible to a known earlier state and is distinguished by the introduction of materials (new and old) into the fabric. This is not to be confused with either recreation or conjectural reconstruction which are outside the scope of this Charter.
The heritage experts agree that the masonry wall has been reconstructed, to some extent. Mr Staas says that the wall is reconstructed and Mr Phillips is less certain as to how much of the wall is original and how much is reconstructed. They agree that the reconstructed wall (excluding the garage door opening to the rear of 46 Cambridge Street) closely resembles the form of the original 1890s wall, evident in the c1895 photograph (exhibit 3).
Article 17 of the Burra Charter states the following:
Reconstruction is appropriate only where a place is incomplete through damage or alteration and where it is necessary for its survival, or where it reveals the cultural significance of the place as a whole.
The commentary for reconstruction in the (illustrated) Burra Charter includes an explanation that reconstruction is intended to safeguard the authenticity of the place and reveal significance and that sufficient evidence must be available.
Taking those concepts and applying them to this matter, I am satisfied that the existing wall, notwithstanding that it may be wholly reconstructed using new and old materials, has successfully safeguarded the authenticity of the original wall and contributes to the cultural significance of the Paddington HCA. I agree with Mr Phillips that the masonry wall along the Glenmore Road frontages has been an extant visual element with the Glenmore Road streetscape since the 1890s and its reconstruction during the 1980s has not diminished its positive contribution to the Glenmore Road streetscape.
In my view, a garage door and associated slots in the masonry wall and raising the height of the masonry wall over the new opening will considerably alter the form of the masonry wall, which will have a detrimental impact on the character of the Glenmore Road streetscape and destroy the rhythm of the wall.
Precedent
I accept that there is a reasonable probability that 48 and 50 Cambridge Street would seek to insert a garage door opening in the Glenmore Road frontage, if the proposal is approved and therefore the cumulative impact of four garage doors within the Glenmore Road frontages must be a consideration, in accordance with Lloyd J's findings regarding precedent in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75.
In my opinion, the cumulative impact of four garage doors in the masonry wall along the Glenmore Road frontage will have a detrimental impact on the character of the Glenmore Road streetscape and destroy the rhythm of the wall.
Conclusion
The principle consideration in this matter is the impact of the proposal on the heritage significance of the Paddington HCA and I find the proposal would have a detrimental impact on the heritage significance of the Paddington HCA and that the impact is of such consequence, the appeal should be refused. It is therefore not necessary to deal with the issue of whether the northern courtyard should or should not contribute to the private open space calculation.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The application to modify development consent 452/2011 is refused.
3. The exhibits, other than exhibits 2, A and B, are returned.
Susan O'Neill
Commissioner of the Court
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Decision last updated: 08 November 2012
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