Gialouris v Woollahra Municipal Council - [2008] NSWLEC 1311

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Gialouris v Woollahra Municipal Council [2008] NSWLEC 1311

PARTIES:
APPLICANT
Jim and Sophie Gialouris

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):
10048 of 2008

CATCHWORDS:
Development Application :- garage and vehicle footpath crossing, conservation area, heritage row of terraces, nuisance, privacy, juliet balcony, historical evolution, service facilities

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Paddington Development Control Plan 1999
Woollahra Local Environmental Plan 1995

CORAM:
Hoffman C

DATES OF HEARING:
23/07/2008

EX TEMPORE DATE:
23 July 2008

LEGAL REPRESENTATIVES

APPLICANT
Dr S. Berveling, barrister
Instructed by Mr S. Levitt
of Levitt Robinson Solicitors

RESPONDENT
Ms J. Hewitt, solicitor,
of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

23 July 2008

10048 of 2008 Jim and Sophie Gialouris v Woollahra Municipal Council

JUDGMENT

This is a Class 1 appeal No. 10048 of 2008 between J and S Gialouris and Woollahra Council in regard to the refusal of DA No. 631/2007 for No. 31 Suffolk Street Paddington for alterations and additions including but not limited to an upper storey bedroom extension at the rear, the lowering of an existing rear deck, construction of a garage with a roof top terrace in an existing side yard with main street frontage, and having stairs down into the remainder of the yard, also french doors from the living room onto the garage terrace and above it a juliet balcony and french door to a bedroom on an upper level. There are also new masonry boundary walls proposed and a new vehicle footpath crossing for the new garage.
The appeal had a s.34 conciliation under the Land and Environment Court Act, 1979, on 11 June 2008 and resulting from it amended plans were prepared and that resolved most of the respondent’s concerns except for the garage and new vehicle footpath crossing. The Council sought this aspect to be rejected on conservation and streetscape grounds. The parties agreed to a s.34(3)(b)(ii) hearing to resolve the dispute.
The respondent was represented by Ms J. Hewitt, solicitor, Mr DaLessio, town planner, and Objector, Mr A. Boss representing the Paddington Society. Mr Scoufus of No. 36 Norfolk Street, a neighbour of the subject property at the rear, could not attend the hearing but sought that his previous objections be heard.
The applicant was represented by Dr S. Berveling, barrister, and Mr P. Robinson, heritage architect.
The provisions of the Paddington Development Control Plan 1999, apply under the Woollahra Local Environmental Plan 1995 (LEP). The subject site is a street and locality containing significant rows of terraces houses in typical Paddington context. In this case there are 16 terrace houses in a row, occupying the eastern side of the street between Norfolk and Broughton Streets. Across the street on the other side are approximately 20 terraces houses in a row.
The subject site is at the northern end of its row of terraces, and whilst being a detached, free-standing terrace it forms part of the row and contains original architectural styling details consistent with the southern end terrace of the row. The subject site is in the Paddington Conservation Area, however it is not listed as a Heritage item, and is not located in the vicinity of heritage listed items or archaeological site.
The property is zoned Residential 2A under the Woollahra Local Environmental Plan 1995 (LEP) and it has a triangular shape with a total site area of 146 sq metres. The two long sides of the triangle: one frontage is to Suffolk Street where it has a curve at its northern end as it bends around into Norfolk Street. The other long side is to an old night soil laneway.
The site contains a free-standing multi-storey house that terminates and is part of the row grouping that is previously mentioned being No.s 1-31 Suffolk Street. It has existing face-brick with sandstone base retaining walls and has original architectural details on the dwelling. It has similar materials to the adjoining row of terraces together with contrasting rough cast render in the front gable.
The row maintains the original and surviving built alignments along the street . Several including the subject house have alterations and/or extensions to the rear ground floors. Due to the slope uphill from the street, the ground floor levels are set higher above the street level than those on the opposite side.
Paddington is a recognised unique urban area of national heritage significance and the Development Control Plan is aimed at maintaining that character whilst allowing evolution to meet current day needs, subject to assessment under the guidelines provided. Those guidelines say in the development control plan to allow for variations that are not covered in the guide. Any variations must still achieve the objective of the LEP cl 2 (g)(ii) and (iii), and also under cl 28 of the LEP, consideration of the impact on significance of the conservation area.
The Objectors concerns were in two categories; one being the impacts on adjacent residents, and the other being the conservation area.
The site backs onto a narrow night soil lane and because of its triangular shape it has a 30 m plus long rear boundary. This means it has about 6 neighbours being the rear yards and rooms of terraces fronting Norfolk Street.
The subject house has already been renovated with large glass doors and a deck at rear. The neighbours complain of privacy impact and noise from the subject property. The additional extensions now proposed are said only to increase the current nuisances.
The amended plans have lowered the existing rear deck by 100 mm behind masonry boundary walls and proposed screen vegetation to reduce those impacts. The upper rear bedroom extension is only 1.3 m extra width to the room, and the amended plans have reduced the two previous windows proposed in the bedroom to only the installation of the existing single window. The respondent feels this keeps privacy very similar to that existing.
The garage terrace on the amended plans has a large garden planter now to add more privacy screening and reduce the number of people that could occupy it. Also, the stairs down into what is left of the yard which fronts the main street frontage are moved towards that street frontage to prevent people on the stairs looking up to the neighbours.
It is my opinion those concerns about nuisance and privacy are satisfactorily resolved, given the density of development in Paddington where very few would expect to have total visual and aural privacy.
In regard to the conservation issues, the Paddington Society says the garage and footpath crossover are foreign to the Victorian/Edwardian period, especially in the street of terraces where the only existing garage fronting the street is No. 1 Suffolk Street. It appears to be of 1950 or 1960 vintage and a very bad example not to be repeated. Creation of a new kerb crossing is contrary to the specific clause 5.2.6 G2 provision of no further crossings being permitted in street front zones.
The Society submits that the crossover due to its position close to the curve of Suffolk Street will delete two on-street carparks and provide only one private garage in an area where on-street parking is in great demand. I note the parties agreed the proposal would delete one public on-street carpark.
The Society also submitted that the terrace house is an end terrace with a typical massive end wall; and the proposed juliet balcony and french doors proposed to it and the terrace below disturb the façade that is quite visible from the street due to the corner location of the site. The Society also says that the juliet balcony is imitative and inappropriate to a building in the conservation area.
Mr DaLessio supported the Paddington Society objection to the end wall up until the amended plans came in. He believes the reduced size of those components are now quite acceptable to maintain the dominance of the massive end wall appearance. He still opposes the garage on the basis of the garage being uncharacteristic of the Victorian/Federation periods and being out of place in the street front zone. The Development Control Plan allows for garages off rear lanes but not on street fronts, especially where the streetscape has the consistency of no other garages. The garage at No. 1 is at the end of the street and at least confines its unacceptable impact to that location.
Mr Robinson held the opinion that the development control plan provision of not allowing further crossings in the street front zone applies only to the front façade of the house and any yard in front of it. Therefore the garage can be considered as beside the house, as in cl 5.1.1 G1
It seems to me that this application in respect of the garage falls between the two guidelines. An additional consideration is that the existing masonry fence along the Suffolk street garden wall has a sandstone base course that dates back to the 1880s, just before the demolition of the original 1843 Duxford House that existed just up the hill of the subject property.
Mr DaLessio and Robinson agreed that the base course was probably erected when Suffolk Street was built through the grounds of Duxford House, and although the sandstone base course is not part of the original gardens of Duxford House, it does reveal a historical layer of the evolution of Paddington and Duxford House. Mr Robinson says that the garage door which deletes part of the wall still leaves enough of it to retain the history. Mr DaLessio says that the base course should be retained intact.
In this case I have the opinion that the Development Control Plan puts a high value on retaining streetscape, in order to maintain the conservation area character over the long term future. The Development Control Plan makes provision for garages, and other service facilities required by current day requirements in rear lanes. This garage would be on the main street frontage of the site. It is not even a side street of the site. The streetscape of Suffolk Street has a consistency that retains the conservation character of national significance, with a pleasant tree-lined vista and a row of intact terrace houses on both sides.
The garage door and crossing are two new foreign elements to that character, which come at the expense of the loss of one public car space in an area where there is high demand, and at the expense of the loss of fabric, being that part of the sandstone base course, plus extra bulk in the streetscape, by having to raise the street front garden wall above the base course of the house to provide height for the garage.
The heritage experts agreed that the garden wall above the sandstone base course should be ashlar pattern rendered to match the house base course.
Mr DaLessio said that with the garage deleted, the garden wall and the terrace and planter boxes could be lowered to match the house base course.
It is perhaps unfortunate that this property does not have a rear lane wide enough for a car, in order to to provide a garage at the rear, but that is how the owners bought it.
In view of the evidence I have concluded that the development can be approved subject to the deletion of the garage as recommended by Mr DaLessio.
Therefore the orders of the Court are:
1.   The appeal is upheld in part.
2.   Development consent is granted to the alterations and additions to No. 31 Suffolk Street, Paddington, as shown in plans A01 and A02 both issue B by MSB Design, and Plan LO1E by Nicholas Grey Landscapes, subject to the garage and new vehicle footpath crossing being deleted, and the terrace and planter troughs on Level 1 north-east elevation being lowered about 400 mm so that the street front garden wall matches the height of the of ashlar pattern base course of the house, all as set out in and subject to the conditions annexed hereto.
3.   The exhibits are returned to the parties except Exhibits A,B, 3 and 5.

___________________

K. G. Hoffman

Commissioner of the Court