Fjalling v Woollahra Municipal Council

[2022] NSWLEC 1238

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fjalling v Woollahra Municipal Council [2022] NSWLEC 1238

Hearing dates:

2 May 2022

Date of orders:

06 May 2022

Decision date:

06 May 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.
(2) The exhibits, other than Exhibits 1 and A, are returned.

Catchwords:

DEVELOPMENT CONTROL ORDER – appeal against a development control order to demolish works – heritage conservation area – remove and replace unsympathetic and contemporary front door and remove unsympathetic external architrave around the first floor French doors on the primary façade of the terrace

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.4, 8.18, 9.34, Pt 1, Sch 5,

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cl 2.53

Woollahra Local Environmental Plan 2014 cl 5.10, Sch 5, Pt 2

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Eleonor Fjalling (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/307548

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Development Control Order 194/2021, being a “Demolish Works Order”, (the Order), issued on 5 October 2021 by Woollahra Municipal Council (the Council) to Dr E Gorczynska-Fjalling, under s 9.34(1)(a) and cl 3 of Pt 1 to Sch 5 of the EPA Act. The terms of the Order are as follows:

1. To remove and replace the unsympathetic and contemporary front entrance door with an appropriate style door in keeping with the heritage requirements of Chapter C1 of the Woollahra Development Control Plan 2015. Please refer to the examples of acceptable replacement doors and details of door features considered appropriate as recommended by Council’s Heritage Officer which can be found in the Annexure of this Development Control Order 194/2021.

2. To remove the unsympathetic external architrave around the first floor French doors along the primary façade of the subject terrace facing Paddington Street.

2. The period of time to comply with the Order was 45 days from the date of the Order.

3. The appeal was subject to conciliation on 25 February 2022, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

Issues

4. The Council’s contentions can be summarised as:

• The Order was validly and appropriately issued on the applicant.

• The front entrance door on the ground floor and the external architrave around the French doors on the first floor of the terrace has been carried out without development consent and development consent was required.

• The unlawful works result in an unacceptable impact on a contributory item and a contributory group in the Paddington Heritage Conservation Area (Paddington HCA).

5. The applicant seeks orders that the Order be withdrawn by the Council or dismissed by the Court and that the Council reimburses the applicant’s the Court’s application fee.

Planning framework

6. A demolish works order is a general order under Pt 1 of Sch 5 to the EPA Act to the owner of the building to demolish or remove a building that requires a planning approval and is erected without approval. Pursuant to s 1.4 of the EPA Act, the definition of “building” includes part of a building.

7. The Court’s power on hearing an appeal against a development control order, pursuant to s 8.18(4) of the EPA Act, is as follows:

(4) On hearing an appeal, the Court may—

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

8. The site is zoned R2 Low Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014).

9. The site is within the Paddington HCA identified as C8 (Sch 5, Pt 2 to LEP 2014). Development consent is required for altering the exterior of a building in a heritage conservation area (cl 5.10(2)(a)(iii) of LEP 2014). Development consent under cl 5.10 of LEP 2014 is not required when the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development is of a minor nature or is for the maintenance of the building in the heritage conservation area (cl 5.10(3)(a)(i) of LEP 2014); or the development is exempt development (cl 5.10(3)(d) of LEP 2014).

10. The applicant was not advised in writing by the Council that it was satisfied of the matters under cl 5.10(a) of LEP 2014 in relation to the replacement of the front door and the installation of the external architrave around the first floor French doors opening.

11. The replacement of the front door and the installation of the external architrave are not exempt development under cl 5.10(3)(d) of LEP 2014, because the development is construction in a building within a heritage conservation area, pursuant to cl 2.53 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, as follows:

2.53 Specified development

A minor external non-structural building alteration, such as the following—

(a) painting, plastering, cement rendering, cladding, attaching fittings or decorative work,

(b) the replacement of an external window, glazing areas or a door (other than those on bush fire prone land)…

is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item or in a heritage conservation area or a draft heritage conservation area.

12. The replacement of the front door and the installation of the external architrave around the first floor French doors opening are not the subject of a development consent. The Council submitted that neither a development application nor Building Information Certificate application have been lodged in relation to these works.

13. Woollahra Development Control Plan 2015 (DCP 2015) applies to all land in the Woollahra Municipality, at A1.1.3. Chapter C1 of DCP 2015 is the part of the DCP that addresses the Paddington HCA. The statement of heritage significance for the Paddington HCA, at C1.2.1, is as follows:

“Paddington is a unique urban area which possesses historical, aesthetic, technical and social significance at a National and State level. An important factor in the significance of Paddington is its exceptional unity, encompassing scale, character, history, architecture and urban form.

The built environment of Paddington is an excellent example of the process of 19th century inner city urbanisation of Sydney which was largely completed by 1890. The predominant Victorian built form is an excellent representative example of the phenomena of land speculation and a ‘boom’ building period between 1870 and 1895.

The terraces of Paddington clearly trace the evolution of the imported English Georgian and Regency terrace models into the distinct Australian style evident in the Victorian era terraces.

Paddington retains many significant types of buildings that represent all phases of the suburb’s historical development. These building types range from modest, small-scale, single storey timber and masonry cottages to remnant examples of former gentry mansions, boom style middle-class terrace houses, apartment blocks and contemporary infill development, all of which are set in a varied network of streets, lanes and pedestrian accessways which reflect the phases of subdivision and development.

Paddington has a multitude of important historical and social associations. It is linked with the early transport routes along South Head Road (Oxford Street) and Point Piper Road (Jersey Road), the construction of Victoria Barracks in the 1840s, the gentry estates, prominent figures of the early colony, the speculative building boom between 1870 and 1890, and the development of Australian tennis at the White City site. Its historical and social associations extend to the periods of occupancy by immigrant groups and minority groups including the Chinese market gardeners, the Jewish community around the turn of the century, the European immigrants in the 1950s and an alternative artistic and intellectual population in the 1960s and 1970s. Today Paddington has a high level of social esteem and is regarded as one of Sydney’s most desirable inner-city urban areas. The changing sociology of Paddington demonstrates phenomenal variations in status and changes in community attitudes to the 19th century suburb.

Paddington has important associations with the evolution of the conservation movement in Australia, in particular with the actions by the National Trust and the Paddington Society, which ensured its conservation at a time of redevelopment threat in the 1960s. It is significant as the first suburb classified by the National Trust, a community based, non-government organisation committed to promoting and conserving Australia's heritage.

Paddington has a unique aesthetic significance due to the superimposition of the built form on a sloping topography which overlooks Sydney Harbour and its foreshores. The coherent and extensive Victorian built form comprising groups of terrace buildings on narrow allotments which step down hills, turn corners or sit in ranks along tree lined streets produces a singularly recognisable image.

Inter-War flat buildings are also present in Paddington, ranging from around 1918 to circa 1950. Many of these buildings make an important historic, aesthetic, social and representative contribution to the character and illustrate the historical evolution of development of the area. They demonstrate the key characteristics of architectural styles of the Inter-War period.

Paddington provides vast opportunity for research, education and interpretation through the physical layout of its road network, its subdivision pattern and the varied form of buildings.

These buildings provide an excellent record of past technologies and domestic lifestyles through features such as original external and internal building fabric, detailing and room layouts. Terrace houses, semi-detached dwellings, flat buildings and freestanding houses all show the evolving attitudes towards families and the home from the early 19th to the late 20th century.”

14. The desired future character for the Paddington HCA includes to enable interpretation of the historical development of Paddington, at C1.2.4 of DCP 2015.

15. The relevant objectives and controls for the principal building form and street front zone of contributory buildings, at C1.4.1 of DCP 2015, are as follows:

“The loss of significant original fabric, in particular of the principal building form and street front zone, weakens the integrity of the heritage conservation area. Where work is proposed to the principal building form and the street front zone, reconstruction or restoration of missing elements and the removal of unsympathetic elements is encouraged. New work should be carefully designed sympathetically within the significant historic fabric.

Principal building form

The principal building form is the original front building section within a street frontage (see definition). The principal building form, particularly the front façade, is an aspect of exceptional significance of the heritage conservation area, facilitating the understanding of the significant development of the terraced suburb from the mid19th century onwards.

Objectives

O1 To retain and conserve the principal building forms and street front zones.

O2 To restore or reconstruct missing elements of the principal building forms and within the street front zone.

O3 To encourage the removal of uncharacteristic elements or structures.

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

O5 To reverse inappropriate reconstruction work.

O6 To retain the distinctive shared characteristics of groups of buildings.

O7 To retain, restore and promote the significance, contribution and relationship of a building within the context of a group of buildings.

Controls

Principal building form

Exterior controls

C1 The significant external elements of a principal building form are to be retained and conserved, that is:

c) no external alterations or additions are to be made to the significant elevations, details, materials or finishes of the principal building form except to allow for restoration or reconstruction;

C2 When works are proposed to the principal building form or original significant elevations visible from the street, Council encourages, and may require, reconstruction or restoration of missing elements (where physical or documentary evidence of an earlier state exists) or reversal of uncharacteristic elements where:

c) original door or window types and patterns have been removed;

f) inappropriate reconstruction of period detail and elements has occurred.

C12 Non-original doors and windows shall be reconfigured to a traditional type consistent with the architectural style of the building and, where evidence exists of the original doors and windows, they are to be replicated.

C14 When works are proposed in the street front zone Council encourages, and may require reconstruction or restoration of missing elements or reversal of uncharacteristic elements.”

16. The relevant objectives and controls for front doors, at C1.5.3 of DCP 2015, are:

“The front door was the most elaborately detailed timber door of the house. Commonly it featured moulded and recessed panels and good quality hardware. The quality and level of detail diminished in secondary areas of the house. Doors to verandahs at the first floor level were usually timber French doors with solid lower panels.

Objectives

O2 To reinstate traditional windows, doors, and shutters consistent with the architectural style of the building on significant elevations facing streets.

O3 To retain the visual prominence of windows and door openings visible from the public domain.

Controls

C2 When works are proposed to the street front elevations on the principal building form and on side elevations facing the street, unsympathetic windows and doors on those elevations are to be removed and replaced with windows and doors that are consistent with traditional elements of known earlier configuration in terms of size, proportion, materials and detail.”

17. Figure 17 under C1.5.3 of DCP 2015 includes the following images of door types:

Consideration

18. An appeal under s 8.18(1) of the EPA Act is a de novo hearing of the Council’s decision to issue a development control order, and so the Court is empowered to exercise the same functions as exercised by the Council in making the original decision.

19. I accept the applicant’s submission that the front door that was replaced was not the original Late Victorian front door, on the basis of the information contained in the National Trust of Australia’s heritage inventory sheet for 3 Paddington Street, Paddington, dated 1982 and reproduced at Figure 1 of Exhibit 3. The heritage inventory sheet includes the following:

“Works suggested:

Removal of unsympathetic additions and reinstatement of:

Original-styled front door”

20. The terms of the Order focus on the removal and replacement of the existing unsympathetic and contemporary front entrance door and the removal of the architrave around the first floor opening. The installation of the existing front door, deemed by the Council to be unsympathetic to the heritage significance of the Paddington HCA, is not justified by the fact that it replaced a previous front door that was not the original front door. Whether or not the previous front door was the original door is irrelevant.

21. The applicant submitted that she was given verbal advice by a duty town planner at Woollahra Council on 25 February 2019 that she did not require development consent to carry out the works the subject of the Order. It is incumbent on the property owner to seek expert advice and comply with the law.

22. The applicant submitted that the Council did not engage with her regarding the issues raised by the Council in the Order. I am satisfied on the basis of the documentary evidence before me that the Council’s staff have engaged with the applicant and considered her submissions (Ex 2, tab 1, p 1 “I attended the site and spoke with the owner…”; Ex 2, tab 4, p 1 “the owner… made representations to Council’s letter…”, Ex 2, tab 6, p 2 “the owner has made several representations in response to Council’s Notice of Intention to give an Order…”; Ex 2, tab 8, p 25 “in response to the owner’s enquiry regarding the front doors at numerous homes in Paddington Street…”).

23. I accept the uncontested heritage expert evidence of Nastaran Forouzesh (Ex 3), summarised as follows:

• The dwelling is a Victorian terrace constructed during the late 19^th century and the terrace forms part of a group of three, at 3-7 Paddington Street. The dwelling is a Late Victorian terrace house.

• The dwelling is contributory to the collective heritage significance of the Paddington HCA.

• The existing front door is contemporary, and it is not an appropriate front door for a Late Victorian Paddington terrace house.

• The front door of the terrace house should be a Type B – Late Victorian door as shown in Figure 17 of C1.5.3 of DCP 2015 and the top two panels could be glazed.

• The installation of the external architrave around the first floor French doors opening is a recent addition, as demonstrated by the photographs of the street elevation of the terrace house dated 2019 and 2020, where the architrave is not evident in 2019 and is evident in 2020 (Ex 3, figures 8 and 9).

• The architrave is not a traditional Victorian architrave, and an architrave would not typically be added externally around an opening of a Late Victorian terrace. The architrave is a non-traditional element.

24. I do not accept the applicant’s submission that the first floor architrave dates from the early 1980s. I do not accept that the email sent by an Environmental Health Officer of Woollahra Council, to the Team Leader Compliance, dated 20.1.21, which states, “I was only there on 15 Jan and subsequently got photos on Mon showing no new architrave but only painting existing one [sic]. I also advised complainant that I had just visited the site and was awaiting more information” (Ex B, f 34), is evidence that the architrave is not new. At its highest, the statement in the email is evidence that the architrave was in place in January 2021. The photographs in Ms Forouzesh’s expert report (Ex 3) show that the architrave was added sometime between September 2019 and November 2020. Furthermore, the street front elevation of the terrace house taken from a building application in 1988 (Ex 3, Figure 3) does not include a wide architrave around the opening on the first floor.

25. I am satisfied on the basis of all of the evidence before me that the unlawful works the subject of the Order are unsympathetic to the style and character of the Late Victorian terrace house and result in an unacceptable impact on the identified heritage significance of the Paddington HCA. Additions to a Paddington terrace house which is contributory to the heritage significance and character of the Paddington HCA must be sympathetic to that character in order to enable interpretation of Paddington’s historical development. As a consequence of the Council’s contentions being made out, the appeal should be dismissed.

Orders

26. The orders of the Court are:

1. The appeal is dismissed.

2. The exhibits, other than exhibits 1 and A, are returned.

Susan O’Neill

Commissioner of the Court

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Amendments

09 May 2022 - Corrected typographical errors in the 'representation' section on the cover page.

Decision last updated: 09 May 2022