Glasson v Woollahra Municipal Council

[2006] NSWLEC 300

Land and Environment Court

of New South Wales

CITATION:

Glasson v Woollahra Municipal Council [2006] NSWLEC 300

PARTIES:

APPLICANT
Robert Dudley Glasson

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10118 of 2006

CORAM:

Murrell C

KEY ISSUES:

Appeal :- Alterations and additions, impact on heritage conservation area, impact when viewed from rear lane, height of parapet

LEGISLATION CITED:

Environmental Planning and Assessment Act
Paddington Development Control Plan
Woollahra Local Environmental Plan1995

CASES CITED:

Golden v Minister for Transport Administering Ports

DATES OF HEARING:

22-23/05/2006

EX TEMPORE JUDGMENT DATE:

05/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr R Glasson, in person

RESPONDENT
Mr S Simington, solicitor
SOLICITORS
Lindsay Taylor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

23 May 2006

10118 of 2006 Robert Dudley Glasson v
Woollahra Municipal Council
JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 By way of background for the Court record, this matter commenced as an on-site hearing yesterday. At the on-site hearing I adjourned for the purpose of allowing the applicant and the respondent to discuss whether an amended plan would be pursued through these proceedings or not. The council is represented by Mr Simington and mentions for the applicant this morning that amended plans will not be pursued.

2 This is an appeal under s 97 of the Environmental Planning and Assessment Act against two conditions that council imposed on a development consent for alterations and additions to a terrace property known as 43 Dillon, Street, Paddington. The applicant is appealing against Condition 2 that requires that prior to the construction certificate being issued that amended plans be prepared. Condition 2 reads as follows:

(a) the deletion of the rear parapet to expose the roof form of the rear ground floor addition being a skillion form sloping from east to west; and

(b) the slope of the skillion roof over the ground floor rear addition shall match that of the existing roof over the first floor level of the rear wing, this may involve the increase in height of the new ground floor wall along the eastern boundary.

3 There is a further condition which should be considered together with (a) and (b), that is (c), “the gutter height of the ground floor skillion roof along the western boundary shall be reduced by 350 mm to minimise the visual impact on 45 Dillon Street”.

4 By way of background to the proposal, an application was originally submitted to the Woollahra Municipal Council to substantially extend the terrace dwelling and the original application provided for a garage excavated into the rear sandstone block wall which to Dillon Lane and for an upstairs extension to provide a balcony off the main bedroom with full-length doors and for ground floor additions at the rear, the form of an extension from boundary to boundary. The application that was finally considered, through an amended plan processed by the council and to which it granted approval, was for only the rear extension by some 2.9 m into the rear yard courtyard of the subject dwelling and a boundary to boundary extension at the rear but providing for a light-well garden within the portion that adjoins the existing dining room area of the terrace house.

5 The subject site is on the northern side of Dillon Street and it has rear lane pedestrian access via stairs from Dillon Laneway that adjoins Boundary Lane at the rear of the subject property. The subject site is some 125 sq m and is regularly shaped, having dimensions of approximately 4.65 m x by 20.4 m. The terrace house or dwelling is within a row that contains some seven dwelling units and it was built at the beginning of the 20th century, slightly later than many of the terrace houses within the Paddington Conservation Area. The subject site is zoned 2(a) under the Council’s Local Environmental Plan 1995 and the zone contains a number of objectives including to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses. The subject site is also within a ‘conservation area’ and the heritage conservation areas provisions are contained in Pt 4 of the LEP and for heritage conservation areas cl 28 is particularly relevant in:

A person shall not in respect of a heritage conservation area demolish or alter a building or work within the area, damage or move a relic” et cetera, “erect a building or subdivide land except with the consent of the council and the council shall not grant consent to an application unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area. The council shall not grant consent unless it has considered a statement of heritage impact or a conservation plan or both as may be required.

6 The relevant Development Control Plan is the Paddington DCP and the Paddington DCP contains extensive guidelines for alterations and additions of dwelling houses within the Paddington Conservation Area being recognised as a national icon in terms of the most intact Victorian period terrace rows in the world.

7 The issue before the Court is a relatively small issue in terms of a detail of the parapet roof that is proposed at the rear of the dwelling over the extension. The council referred to a number of controls within its DCP that provide guidelines for rear additions and rear elevations, bearing in mind that the dwelling at No. 43 is one that is within a row of relatively intact or unaltered in terms of the group. The Paddington DCP, s 5 contains provisions for rear elevations and in particular, it states:

Where a coherent group of rear elevations exist, any development should occur within the existing envelope, new development which ignores its context will not be permitted. Rear extensions should respect the traditional hierarchy of scale and form greater freedom is permitted of the architectural treatment of ground floor extensions than for visible upper floor additions.

8 As I stated, the development application has been amended to that originally submitted such that the upper floor is to remain intact and the existing window is to remain in-situ. The objectives of the DCP include:

1. To retain the forms and character of traditional rear facades particularly where they exist in unaltered groups.
2. To promote rear alterations and additions of sympathetic design and construction.
3. To enable sympathetic contemporary design and use of contemporary materials in appropriate circumstances.

9 The guidelines include:

G(3): Alterations and additions to a building which comprises one of a group must be designed with regard to the overall balance of the group in terms of height, alignment, form, scale, breezeway pattern and architectural character.

The roof or an extension of the rear roof for an existing component must be a skillion or gable form appropriate to the building type and alterations and additions at the rear of buildings must not dominate or otherwise adversely compete with the form height proportions and scale of that part of the building which is to be retained, must not produce or match a building which in terms of its height, bulk and scale is inappropriate to the heritage character of the area, must retain traditional solid to void ratios on elevations visible from the public domain, must not employ large areas of glass on the upper levels, must be designed to minimise or avoid an adverse impact on neighbouring properties in terms of overlooking loss of sunlight and ventilation, must not extend beyond the established building lines in a group or row of buildings.

10 G(9) has also been cited as being relevant: “sympathetic contemporary design may be permitted where intrusive fabric or fabric of low significance exists”. Currently at the rear of the subject site there is a lightweight Perspex style awning to the rear of the building.

11 This section of the DCP also provides for a description of roofs as:

the arrangement of terraces stepping down the hills of Paddington affords views to the roofs. As a consequence, the roof-scape is a significant element in the urban character of Paddington. Replacement of original roofing materials with concrete tiles, glazed tiles, and the replacement of original roof details such as the covering over or lowering veranda roof profiles are eroding Paddington’s roof-scape. … There are also secondary roof forms and the lower roofs to rear additions are generally skillion forms, when paired with a similar property, roofs produce patterns of gable forms to the rear of properties.

12 The guidelines and controls for roofs relate to existing patterns, and include:

G(3): “Existing patterns of roof forms within groups of unaltered buildings must be retained; G(6) secondary or rear roofs must not be raised or altered if the rear skillion forms part of a group of similar roof forms; G(7) roof forms are to reflect appropriate traditional roof forms; and G(11) roof forms and materials for infill development shall be of a design and material that respond appropriately to relevant aspects of the historic context”.

13 The Court had the opportunity of viewing a number of properties within the area to understanding the context of the proposed alteration and additions. As I stated, the rear part of the building is significantly elevated from the rear laneway. Nonetheless, it would still be visible above the extended fence as proposed on the subject property, that is the parapet and its relationship with the upper level.

14 For the applicant, evidence was given by Mr Stephen Davies, a heritage consultant, and for the council, Mr Mario D’Alessio, council’s heritage assessment officer, provided evidence to the Court. There were also written statements provided for the Court’s benefit.

15 The adjoining property to the east at the rear has outbuildings of a laundry and a toilet or bathroom at the rear of that particular property with a skillion roof sloping towards the common boundary of the subject site. These are not the original fabric and they represent a small addition to the adjoining property at the rear and the extension or outbuildings at the rear of this property to the east will still protrude further into the rear courtyard than the proposed extension to No. 43. However, the proposed extension is boundary to boundary whereas the outbuildings for the adjoining property only cover one portion of the width of the site.

16 At the end of the day, the Court considered the evidence and having regard to council’s controls, expressed the view that the proposed parapet or form of the rear of the subject extension was not sympathetic in terms of council’s guidelines and the extent of the parapet would represent as a bulky and more dominant element when viewed from the public domain and adjoining properties, in particular, the portion over what was the traditional breezeway for this pair of terraces.

17 By way of comment the Court considers there should be a lowering of the parapet. The applicant has elected not to pursue an amended plan through these proceedings and therefore an assessment of a new development application or a s 96 application would be at the discretion of the consent authority.

18 However, by way of comment the rear elevation should present such that there is less bulk above the doors than proposed as this would represent an uncharacteristic element. And whilst sympathetic additions and modern additions are allowed for ground floor extensions, the Court is of the opinion that the proposal is not sympathetic to the conservation area and the Court expressed the concern that by providing such a large parapet it could create a precedent. In this regard, it also fails. And when I say, precedent, that is it could be readily invoked by others. I refer here to the case of his Honour, Lloyd J in Goldin v Minister for Transport Administering Ports wherein it was seen that precedent is an issue that should be considered. Where others would seek to invoke a similar proposal that could not be distinguished.

19 The Court also in its preliminary views expressed the opinion that the skillion roof, as proposed by the council, is not the only resolution that would be acceptable. But the applicant has elected not to pursue an amended plan through the Court process and therefore my comments should not be taken as an indication that another consent authority would necessarily approve of a more modern form even with a less prominent parapet.

20 In the Court’s opinion, it is appropriate that the design of the rear parapet be refined or altered such that it is a more sympathetic contemporary design that is less dominant on the conservation area. The views within conservation areas from laneways that afford viewing opportunities are an important aspect of the conservation area of Paddington. And for the rear of dwelling alterations these must be considered in the context of adjoining dwellings within the same row or within the vicinity. There is the provision within the Paddington DCP to allow for contemporary design and that this is recognised, however, such contemporary design should not dominant in terms of the conservation area and in my assessment the proposal is not sympathetic.

21 The Court has given central consideration to the council’s Development Control Plan and the need to conserve the heritage significance of the area. The DCP allows for or promotes a ‘living environment’ and therefore allows for alterations and additions in a sympathetic manner to be undertaken to heritage houses and terraces within the conservation area.

22 The Court, as I said adjourned yesterday to allow the applicant and the council to discuss whether an amended plan was to be pursued through these proceedings and then the appropriateness of the applicant paying the council’s costs in terms of such an amendment. However, the applicant has elected not to pursue this course of action and perhaps separately submit a new application, s 96 or otherwise to the council.

23 The Court, as a 97 appeal, must have regard and must be satisfied with respect to the whole development and I see no reason as to why the development with the conditions and as approved by the council, should not be granted approval by the Court. However, in terms of the conditions sought to be altered, that is 2(a) and 2(b), I am not satisfied that the plans reflect the intent and spirit of the DCP and I also must have regard to the provisions of the LEP for alterations and additions in conservation areas.

24 While, there were a number of objections to the original proposal, that is the upstairs additional balcony and doors and impact on privacy of properties adjoining the laneways this part of the proposal was deleted and the only outstanding objection is from the Paddington Society expressing concern about the ground floor extension being boundary to boundary and the roof of the extension and the height of various walls. The Society also expressed concern about the soft landscaping area, however as a small site I was advised that this is not an issue and 50 per cent is not required for small sites such as the subject site.

25 Therefore, on the basis of my assessment, while I am dismissing the appeal on the imposition of the conditions, at the same time council’s consent should stand. Therefore the formal orders will reflect same.

26 Accordingly, the formal orders of the Court are:

1. The appeal against the conditions of consent for the property known as No. 43 Dillon Street, Paddington, is dismissed.

2. The development application for alterations and additions to the above dwelling is approved subject to the conditions contained in Annexure ‘A’.

3. The exhibits except for the plans Exhibit B and the conditions are returned to the parties.

________________
J S Murrell
Commissioner of the Court
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