Ergo Architecture and Interiors v Woollahra Council
[2011] NSWLEC 1283
•29 September 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Ergo Architecture & Interiors v Woollahra Council [2011] NSWLEC 1283 Hearing dates: 22 September 2011 Decision date: 29 September 2011 Jurisdiction: Class 1 Before: Morris C Decision: The appeal is dismissed.
Catchwords: Development Application: Contributory heritage item; impact of garage. Legislation Cited: Woollahra Local Environmental Plan 1995 Texts Cited: Woollahra Heritage Conservation Area Development Control Plan 2003 Category: Principal judgment Parties: Ergo Architecture & Interiors (Applicant)
Woollahra Council (Respondent)Representation: Mr V Conomos
Ms M Hawley
Conomos Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 10626 of 2011
Judgment
This is an appeal against the refusal by Woollahra Council (the council) of Development Application No 314/2010/1 (the application), which proposes alterations to an existing building and street boundary fence to construct a vehicle access point and new basement garage at No 54 Fletcher Street, Woollahara (the site).
The contentions in the matter are whether the application is consistent with the council's planning controls, particularly those relating to heritage and streetscape.
The site and its context
The site is located on the southern side of Fletcher Street opposite its intersection with Small Street and has a frontage of 6.095m and area of 191.7sqm. It contains the original single storey timber cottage that has been renovated with a two-storey addition to its rear. With its neighbouring property, No 56, the site forms a pair of Victorian cottages, which were built in 1904. The verandah of the dwelling is setback 2.65m from Fletcher Street and the building is elevated above the street level.
Development immediately adjoining the site comprises a variety of dwelling houses, many of which are erected across the site due to the narrow width of the allotments. Holy Cross Primary School and Plumb Reserve are located further to the west of the site.
There is no consistent architectural style evident in the street, development ranges from original cottages to newly constructed two storey dwellings.
Unlike many of the other blocks within the vicinity of the site, there is no rear lane access available to the site or those lots between Fletcher Lane and the school. Garage doors are located in the front faade of a number of the dwellings in this section of Fletcher Street.
Background and the proposal
The original cottage has been renovated and its setting altered by way of the excavation of the front building alignment to reduce the height of the front yard from a level similar to the original verandah level to a level consistent with the footpath level. From the evidence provided, the original ground level was approximately 1.2m above footpath level and was retained by a sandstone fence. There is disagreement between the parties as to whether this work was authorised by a consent granted by the council in 2007 and modified in 2008. That consent provided for internal alterations to the cottage and the construction of a two storey addition to its rear, consistent with the current built form on the site.
The applicant says that the modified plans provide for the alteration of the levels within the street front zone and the construction of the subfloor area below the verandah as built. The council says that whilst this is shown on the plan, condition C.1.b of the modified consent specifically excludes all works within the street front zone including the fence and the storage area under the verandah and the excavation of the front yard, however, it did permit the construction of a pathway and stairs in the position nominated on the plans endorsed with that modification approval. The stairs as currently erected accord to the location shown on those plans. At this stage, the council has not taken any action to address its concern regarding the works undertaken within the street front zone.
Despite the provisions of condition C.1.b detailed above, a new, sandstone clad fence has been constructed and this has been the subject of a building certificate issued by the council on 13 May 2011. The council has not issued development consent for the fence. That fence, from the evidence available, ranges in height from 1.3 - 1.5m in height and does not retain any of the street front zone. It sits approximately 20-30mm above ground level and incorporates hinges and a central joint that would facilitate its conversion into gates.
The application originally proposed to increase the height of the front fence, construct a new vehicle layback and driveway, remove the existing timber framed and clad wall below the verandah and replace it with a timber door of similar appearance but increased height to facilitate vehicular access, construct a ramped concrete floor below the original cottage, construct an internal staircase and use that subfloor area as a garage. The dimensions of that subfloor area are 7.7m x 3.445m. The council refused the application and the following is a summary of the grounds:
- The garage and its access would be located beneath the principal dwelling which would be detrimental to the setting of the existing cottage, the streetscape and the HCA. The proposal would fail to satisfy the provisions of the LEP and DCP.
- The proposal would result in excavation of the site that would compromise the setting and structural integrity of the existing cottage.
- The proposed height and design of the front fence would be detrimental to the setting of the existing cottage, the streetscape and the HCA.
- The proposal would result in the loss of deep soil landscaped area to the frontage which would be detrimental to the streetscape, the HCA and stormwater management of the site.
- The proposal is not in the public interest.
The applicant was granted leave during the hearing to rely on amended plans. Those plans now before the Court delete the proposed internal staircase and retain the existing front fence. The works proposed involve the removal of fill below the cottage to provide clearance for vehicles. This would increase the height of the timber wall between 300-500mm due to the cross fall of the site.
In addition, an alternate plan indicating treatment of the street front zone was tendered as Exhibit G. That plan proposed the planting of one tree within the site with under planting and one street tree. Other changes involve the proposed internal driveway area nominated as being either "gravel cell" or "turf cell" to address the council's concerns in relation to deepsoil planting, landscaping, streetscape and drainage.
The planning controls
The site is zoned Residential 2(b) under the Woollahra Local Environmental Plan 1995 (the LEP) and is within the Fletcher precinct of the Woollahra Heritage Conservation Area (HCA). The site is not a heritage item, nor is it in the vicinity of a heritage item however it, and it pair, No 56 Fletcher Street, is identified as a significant or contributory item in the Woollahra Heritage Conservation Area Development Control Plan 2003 (the DCP). The objectives of the DCP, as detailed in clause 2.4 are:
- To retain the heritage significance and significant characteristics of the HCA, and its precincts, including its variety of distinctive building types, the built and landscape evidence of its historical development and its public and private open spaces and gardens.
- To allow removal or alteration of uncharacteristic features that detract from the significance of the HCA.
- To retain and conserve (heritage items and contributory buildings known as significant items, (ie: those properties and features identified as contributing to the significance of the HCA), including significant fabric, curtilages and settings.
- To encourage the reconstruction of significant items that have been unsympathetically altered.
- To ensure that development is compatible with the significance and significant characteristics of the HCA and respects the principles contained in the Burra Charter.
The Fletcher precinct has descriptors of individual sections, that relevant to the application is the eastern section and it is described in clause 3.1.6 as follows:
- the eastern end of the precinct retains individual single-storey cottages and terracelike forms and small groups of two-storey terrace houses. Small single-storey timber and stone cottages from the Victorian and Edwardian periods are rare in the HCA.
- The precinct's significant buildings that vary in architectural style, type, height and scale. This variety demonstrates the gradual nature of the phases of development in the precinct during the late-Victorian, Federation and the inter-war periods.
- A limited palette of dwelling materials and details including:
- dwellings with dark dry-pressed face brick walls with a combination of moulded detail and timber fretwork or painted stucco with moulded Italianate details, cast iron filigree fringes and valances. Some combine Victorian and Federation detailing in a tra nsitional style representative of the turn of the 20 th Century.
- a small number of houses, now rare within the precinct, with sandstone walls or are clad with painted timber weatherboards.
- roofs that are generally steeply pitched and clad with slate, te rracotta tile or corrugated iron roofs, depending on architectural style and period of construction.
- inter-war flat buildings with face brick, usually without decorative brickwork panelling with terracotta tiled roofs.
Clause 3.2 of the DCP explains wha t is meant by a significant item and how the other controls within that plan are applied as follows:
Significant items are those features that contribute to and exemplify the heritage significance of the HCA and are identified as heritage items and contributory items. Heritage items are listed in Woollahra LEP 1995. Contributory items are buildings, structures, landscape elements and other townscape features (such as historic kerbs, gutters and street name inlays) that contribute to the overall heritage significance of the HCA, but are not listed as individual heritage items.
When a property has been identified as a significant item , the listing includes all original fences, landscaping, trees, gardens and outbuildings as well as any building. This plan therefore includes
objectives and controls that apply to these important elements of the buildings' settings.
If a significant item is one of the key contributory building types described in clause 3.3 of this plan, the building type controls set also apply.
All properties are also subject to the general controls set out in clause 3.4.
Clause 3.2.1 deals with conservation of significant items and states:
Many types of significant buildings and landscape elements remain in the HCA that represent all phases of the area's development. In order to retain the heritage significance of the area it is important to retain the principal building forms of the significant buildings and the original landscape structures. The
original front building section under one roof, known as the principal building form in this plan, contains the main rooms of the building and commonly faces the streetfront, with a secondary, section behind, sometimes separated by an accessway. The principal building forms of the various building types are described in clause 3.3.
Clause 3.3 lists individual building type controls and that relevant to the application is 3.3.1 - Single storey houses. The objective of the control is to preserve the single-storey presentation to the street of existing single-storey buildings. It is apparent that these controls were applied for the rear additions to the cottage.
General controls for parking and garages are provided in clause 3.4.9 and include the following relevant objectives:
O1 To ensure that residential buildings, rather than vehicle access and parking structures, remain the dominant elements in the streetscape.
O2 To ensure that on-site vehicle parking is not provided at the expense of soft landscaping and useable open space......
O4 To allow safe and convenient vehicle access and to minimise vehicle and pedestrian conflict.
Controls for parking and garages relevant to the application are:
C1 Provision of on-site parking areas, parking structures and servicing areas such as loading facilities will not be a general requirement of Council and may not be permitted in certain
circumstances. On-site parking may not be required or may not be permitted where it does not comply with controls in this part, or where:
- the parking of a vehicle may have a detrimental impact on the amenity of an adjoining property, the health or form of a significant tree, the character of a streetscape or laneway
or the significance or architectural character of a building on the site or on an adjacent site
- extensive areas of excavation are required
- a driveway cannot comply with a maximum gradient of 20% with adequate transitions at the top and bottom in accordance with AS 2890.1(1993)..........
C2 All parking is to be provided behind the front building alignment.
C3 No additional vehicle crossovers will be permitted off street frontages.
C4 No parking is permitted under the principal building form of a dwelling
The issues
The contentions in the matter are whether:
- the application is consistent with the objectives of the LEP and the 2(b) zone objectives;
- the proposed new garage and its access is detrimental to the setting of the existing timber cottage, the streetscape and the HCA;
- the proposal will result in the loss of deep soil landscaped area to the frontage and if that is detrimental to the streetscape, the HCA and stormwater management of the site;
Contentions in regard to the height of the fence were not pressed following receipt of the amended plans.
The evidence
Expert evidence was heard from Ms Askin, town planner for the applicant and Mr Davis (applicant) and Ms Reilly (council) on heritage issues.
Ms Askin says that the application is consistent with both the LEP and the 2(b) zone objectives said to be in contention. They are Clauses 2(2)(f)(ii) and (iv), 2(2)(g)(i) and (ii) and 2(2)(k)(ii) and (iii) of the LEP and state:
(f) in relation to the landscape:
(ii) to promote the retention of trees and the planting of suitable new trees in appropriate locations,
(iv) to protect and enhance the environmental quality of the area of Woollahra through the appropriate management and conservation of the existing pattern of vegetation, and
(g) in relation to heritage conservation:
(i) to identify heritage items and heritage conservation areas and to provide measures for their conservation, protection and enhancement,
(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas,
(k) in relation to urban design:
(ii) to retain and enhance the existing elements of the physical environment of the area of Woollahra that, in the opinion of the Council, contribute to the attractive public environment,
(iii) to require that design and siting of new development enhance the attributes of its site and improve the quality of the public environment,
Ms Askin says that the application does not seek to alter the existing provision of landscaping or remove the ability for suitable landscaping to be provided and says that the DCP control for deep soil landscaping is met. She says that the heritage requirements are also met as the application retains the significant fabric and original principal building form of the cottage, does not alter or add to the original elevations of that building, that no works are proposed to original verandahs and balconies and the proposal will not affect the original room layouts of the principal building form, and will retain the shared characteristics of the group as it will not affect the existing pattern of the principal roof forms, will not dominate the group as a whole and will not be discernible from the public domain. Because of this, she says that the application will not affect the existing attractiveness and quality of the public environment in the locality as the proposed garage will not be discernible from the public domain and is therefore consistent wit the objectives of the LEP. She also says that the proposal is consistent with the DCP as it retains the original built form characteristics of the significant item and does not have an adverse impact on the setting of that item.
Ms Askin cites other properties along Fletcher Street that incorporate driveway crossovers and garages including some at the street frontage and says that the application, in providing the garage below the cottage and setback from the street frontage will be less dominant than existing off-street parking along Fletcher Street and will not be discernible when the gates and doors are closed.
With regard to the DCP provision that prohibits garages under the principal building and where extensive excavation is required, Ms Askin refers to an engineering certificate tendered as Exhibit F and says that the necessary excavation work involves the removal of backfilled material between the existing walls at basement level and concludes that the works can be carried out in such a manner so as not to affect adjoining properties. She says that the objectives of the DCP control are met as despite the fact that the garage is directly below the dwelling it would be identical to the current appearance of the dwelling to Fletcher Street and therefore would not affect the setting of the dwelling due to the height of the fence in relation to the existing floor level of the dwelling so that it would not dominate the streetscape.
A plan indicating the extent of deepsoil planting was annexed to Ms Askin's expert report, Exhibit C. She says that plan provides a total of 16.57sqm which represents 8.6% of the site and the DCP requires only 8% so that the control is met.
With regard to the public interest, Ms Askin says that the application will not impact on adjoining properties and, despite the areas of non-compliance with the DCP controls, is in the public interest as it complies will all relevant LEP, DCP and zoning objectives.
The heritage experts agree that the two buildings, Nos 54 and 56 are a pair, that the existing stone wall, certified by the council through the Building Certificate, is not convincing as a sandstone wall and that its current height is appropriate and compliant with the DCP.
The expert report prepared by Ms Reilly was prepared on the basis of what she says is the illegal work within the street front zone and accordingly, much of her evidence is based on an assessment of the application against the site as it presented prior to that work taking place. Mr Davis has carried out an assessment of the application based on the current development on the site.
It is not appropriate for the Court to determine in this matter whether the current site improvements are authorised. There is no application before it that requires such consideration. It is apparent from the evidence provided that the plans approved by the council lack sufficient detail in relation to finished levels to indicate the treatment of the street front zone and the extent of work proposed. What is required of the Court is a merit assessment of the application before it. This requires consideration of the proposed works, particularly the component that increases the height of the timber screen wall beneath the verandah of the principal building form and the extent of work within the street front zone and an assessment of that work against the council's planning controls.
Ms Reilly says that a car would be visible within the street front zone, particularly when the gates are open, that the vertical boarding or dark shadow of the sub-floor space will be visible beneath the principal building form (PBF) and that the parking of a car in the front garden and the excavation under the PBF is a negative form of development in the HCA and is contrary to the controls contained within the DCP. She acknowledges that there are other garages approved as part of dwellings in the vicinity of the site and has provided details of those approvals. Importantly, she advises that all were approved prior to the introduction of the DCP. She says that the council has not approved any garages to contributory buildings in the immediate area during the current LEP period or since the introduction of the DCP.
Mr Davis says that a car will not be visible from the street when in the garage and the fence and door would conceal the vehicle. He says that the proposed garage door will not appear to be different that the existing timber screen and that the non-compliances with the DCP are reasonable having regard to the fact that the council has certified the fence. He says the proposal will have a negligible impact.
Ms Reilly says that the parking of a car under the PBF creates a visual anomaly in the street presentation as it is not characteristic of this period of cottage to have sub-floor car spaces and is therefore not sympathetic to the character of the house or its conservation area values. She says that further undercutting the front garden area by excavation under the front edge of the verandah removes the connection of the ground to the building. Mr Davis says that the situation exists at the moment, including the screen, fence and the relationship of the dwelling to the street and will not appear to be different from the proposed outcome. He says that as an existing, altered, contributory item in the streetscape, it is a practical and non-intrusive outcome.
Mr Davis says that under the current situation, apart from the new crossing, the cottages are a pair in form but the front fencing does not form a pair or read as a pair. The situation with the difference in levels to the pavement does not provide for the dwelling at No 56 to accommodate a vehicle in the same manner as No 54. Ms Reilly contends that the significance of the pair of timber cottages will be reduced by the current proposal. Mr Davis says that the significant items will be retained, as will the curtilage and setting. There are differences in the pair of cottages, the fences, levels, entrance locations and verandah designs however the important integrity of the dwelling will not be altered, except for the new crossing and therefore the dwelling will not appear to be different than currently viewed. He contends that the proposal will not diminish the significance of the original architectural style, form, massing, details, materials and finishes of the subject dwelling and says it will remain the dominant element in the streetscape.
Conclusion and findings
It is important that this matter is considered on the basis of a merit assessment of the works proposed under the application. Whilst the circumstances of the case are a matter of the public interest, it is not appropriate that the assessment is based on the impacts of the works as if there had been no change to the street front zone. The council has authorised, by way of a building certificate, the front fence. That front fence is not a retaining wall. The council has not, at the present time, taken any further action in relation to the remainder of works within the street front zone that it alleges does not have consent or is inconsistent with conditions of the modified consent. Ms Hawley, for the council, concedes that it is unlikely that the council would require the filling of the street front zone to the original levels (that coincided with a level slightly lower than the verandah level) however, did not eliminate the possibility of other action to ensure compliance with the consent conditions.
The application before the Court is to install a new vehicular crossing and layback at the site entrance, introduce gates into the certified front fence, excavate and construct paved access strips within the street front zone to facilitate ramped access to a garage to be constructed below the BPF of the existing, renovated cottage by excavation of backfilled material and construction of a sloped concrete floor slab. That work requires the replacement of the existing timber panelled wall below the existing verandah with similarly designed sliding doors and increasing the height of the opening required to access the garage by between 300-500mm. The application as lodged must be assessed against the council's planning controls.
The fact that the site is identified as a significant item within the HCA and is part of a pair is an important consideration and whilst not having the primacy of a heritage item, the council's DCP, in most part requires similar considerations to be undertaken when assessing the suitability of an application to alter those items. It is therefore necessary to consider the impact of the proposed works on the significance of the identified pairing of cottages and the wider HCA. The DCP identifies the cottages as rare examples of their type within the HCA and accordingly, any application that affects their contribution to that area requires careful consideration.
In this regard, I prefer that part of the evidence of Ms Reilly that remains relevant to the application as submitted, having disregarded that which is irrelevant to the application now before the Court. Whether the works that have been undertaken on the site to date are consistent with the consents that apply to the land does not concern me in finding that the additional works proposed will have the affect of the building appearing either as a structure with garaging under or a two storey building. This has the effect of losing the relationship with the adjacent cottage, the significance of the pairs, the contribution to the HCA and therefore has an adverse affect on the HCA. I do not accept Mr Davies' proposition that the works will not be any different to what is currently observed at the site. The height of the wall/door that would enclose the subfloor area will have to increase, and I consider that the extent of that work is excessive as it will affect the setting of the cottage to such an extent that it would be inconsistent with the pairing of the significant items and would no longer read as a single storey structure, items said by the council in its DCP to be rare and therefore, should warrant preservation where possible.
The incremental changes made to the building are such that its setting is already compromised and this additional work would represent the stage when the heritage significance, relationship with its pair and contribution to the HCA would be lost. The dwellings would no longer present to the lay observer as a pair. I do not agree with Mr Davies that the existing fence will obscure the work, it will be readily visible from the public domain.
I do not consider that the proposed landscaping along the eastern edge of the site will in any way mitigate the impact of the works and the provision of the necessary hardstand areas will remove the opportunity for any substantial landscaping within the street front zone. Ms Reilly's concerns in relation to parking a vehicle within that zone could be addressed by the conditions proposed by the applicant and are not considered to be grounds to refuse the application.
I find that the new development is not proposed to be undertaken in a manner that is sympathetic to the heritage significance of the contributory item and it detracts from its setting within the heritage conservation areas. Nor does it preserve the single-storey presentation to the street or retain the setting of the significant item. Whilst the characteristics of the principle building form are maintained, the proposed garage would become a dominant element and would be unsympathetic to the heritage significance of the cottage and its partner. Accordingly, it is not consistent with the objectives of the LEP or DCP.
I conclude that there are insufficient reasons to justify variation to the council's controls and therefore find that the application is inconsistent with the council's planning controls and the objectives of the LEP and particularly the DCP. I note that those controls have been consistently applied in the locality. For that reason, I give them determinative weight.
Orders
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No 314/2010/1for alterations to an existing building and street boundary fence to construct a vehicle access point and new basement garage at No 54 Fletcher Street, Woollahara is refused consent.
(3) The exhibits, other than exhibit A, are returned.
________________________
Sue Morris
Commissioner of the Court
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Decision last updated: 29 September 2011
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