IUS Pty Ltd v Woollahra Municipal Council
[2006] NSWLEC 690
•20 October 2006 ex tempore
Land and Environment Court
of New South Wales
CITATION: IUS Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 690 PARTIES: APPLICANT
RESPONDENT
IUS Pty Ltd
Woollahra Municipal CouncilFILE NUMBER(S): 10317 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- Deemed refusal of alterations and additions, height control, solar access, adverse impact, heritage significance LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
State Environmental Planning Policy No. 1
Paddington Development Control Plan 1999DATES OF HEARING: 19-20/10/2006 EX TEMPORE JUDGMENT DATE: 10/20/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr D Wilson, barrister
Instructed by: Mr M McDonald, solicitor
Of: Mark McDonald & AssociatesRESPONDENT
Ms M Hawley, solicitor
SOLICITORS
Lindsay Taylor Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
10317 of 2006 IUS Pty Ltd v20 October 2006
JUDGMENT
Woollahra Municipal Council
1 This is a class 1 appeal No. 10317 of 2006 between IUS Architects Pty Limited and Woollahra Municipal Council in regard to deemed refusal of alterations and additions to 124-126 Paddington Street, Paddington.
2 The proposal is to convert the two existing 3-storey terrace buildings, each of which contains three flats, into two dwelling houses with major alterations and additions, including new rear double garage on each lot with a loft above the garage.
3 The statutory controls are the Environmental Planning and Assessment Act 1979, the Woollahra Local Environmental Plan 1995 , in particular cl 2 (g)(ii), cl 12A(a) and 12, cl 18 and cl 27. Also, State Environmental Planning Policy 1 applies.
4 The proposal does not comply with the maximum height control prescribed in the Woollahra Local Environmental Plan 1995 . The existing terraces have high floor to ceiling heights and a steep roof exceeding the height limit as they stand. The proposal does not change that and the applicant has lodged a SEPP 1 objection to this development standard. The objection is made on the basis that the development standard in cl 12 of the LEP is unreasonable and unnecessary in the circumstances of the case.
5 Council considered that objection advanced by the applicant and considered that it is well founded and that granting of development consent would be consistent with the aims and objectives of SEPP 1 and the applicable objectives of the statutes and controls.
6 The applicable policy controls are the Paddington Development Control Plan 1999 , Pt 5.1.1 street frontage, Pt 5.1.3 rear elevations and yards, Pt 5.1.4 roofs, Pt 5.1.5 site coverage, setbacks and levels, Pt 5.1.6 landscaping and private open space, Pt 5.1.7 building height, bulk and scale, Pt 5.1.8 acoustic and visual privacy, Pt 5.2.6 vehicle parking, garages, carports, driveway access and servicing facilities, Pt 5.3.2 building types, multi-storeyed terrace houses. Also, the Access Development Control Plan 2004 applies.
7 The site is located on the north-eastern side of Paddington Street to the south-east of Elizabeth Street, Paddington. The site is within the Paddington Heritage Conservation Area.
8 Each site is 6 m in width with a length of 32 m, making a lot area of approximately 192 sq m each.
9 Located on the lots are two residential terraces, each with a basement level and two levels above street level. The terraces are part of a group of three. The site drops to Paddington lane at the rear such that the basement is at the ground level at the rear of the terraces.
10 There is presently no vehicular access to the sites. The rear yards are partly concreted and have some trees and shrubs.
11 To the west the neighbour is the Church of Christ and an associated kindergarten in its basement. Its main pick-up and drop-off for parents and children is from the laneway.
12 The terraces are not listed as heritage items.
14 The issues had changed due to negotiation between the parties just prior to the hearing. The remaining issues are:13 The proposal was advertised and three submissions were received, being from the Paddington Church of Christ Kindergarten at 116-122 Paddington Street, from Steven and Helen Fitzgerald of 128 Paddington Street, and from the Paddington Society.
1. Whether the consent for the proposed development on the property known as 124-126 Paddington Street, Paddington, should be refused under cl 8(5) of the Woollahra Local Environmental Plan 1995 as the Court cannot be satisfied that the proposed development is consistent with the objective in par 2(g)(ii) of the Woollahra Local Environmental Plan .
2. Whether the development has an unacceptable adverse impact on the heritage significance of the heritage conservation area in which the property is located.
3. Deleted.
4. Deleted.
5. Whether the development is unacceptable due to its non-compliance with Objective 05 of Pt 5.1.7 of the Development Control Plan.
Particulars6. Whether the development is unacceptable due to its non-compliance with Objective 08 and Guidelines G7, G8 and G12 of Pt 5.2.6 of the Development Control Plan.
5.1. The garage lofts restrict solar access to the rear yards of the property on which they are located and the garage loft proposed at 124 Paddington Street would also cast shadow onto the rear yard of 126 Paddington Street, Paddington.
Particulars
6.1. The property comprises two of a group of three terraces with the third building being 128 Paddington Street.
6.2. The proposed garage doors exceed the maximum width at 3.3 m lacking an acceptable interface between the private and public domain.
6.3 The proposed garage lofts are not sympathetic in their massing, form and scale to the group of buildings.
6.4 The proposed garage lofts do not provide an acceptable interface between the public and private domain.
6.5 The form, bulk and scale of the proposed garage lofts overwhelm the existing buildings on the property and the group of buildings.
6.6. The proposed garage lofts have an unacceptable adverse impact on the character of the laneway.7. Deleted.
15 The respondent’s evidence is contained in reports, being heritage reports, from Ms Thom, the council heritage expert; shadows and Development Control Plan issues by Mr Wong, council’s town planner; draft conditions and additional conditions in Exhibits 9 and 12.
16 The applicant’s evidence is contained in heritage reports by Mr Staas; and town planning reports by Mr Goodyer; and an arborist report by Mr P Richards in regard to trees on the boundary but within the property of the church and kindergarten adjacent the proposed new garage on No. 124.
17 A report and drawings on shadows was prepared by the architect.
18 The house plans are in Exhibit E with landscape plans in Exhibit H.
19 Details, drawings of a privacy screen to windows of the lofts above the garage are in Exhibit F.
20 A further laneway elevation of the garages and loft is in Exhibit G.
21 There were joint reports of the experts on heritage in Exhibits 3 and 10 and a joint report of the town planners in Exhibit 5.
22 In Exhibit G, a laneway elevation of the garages and loft, it showed that at loft level there was to be a 1 m side setback from No. 124 to the kindergarten and a 1 m side setback of No. 126 to No. 128.
23 This had been part of the negotiations just before the hearing during which the side setbacks were increased to 2 m each at loft level.
24 Another change was to lower the building by 400 mm.
25 Each loft roof was changed too. It had been a gable roof over each loft facing the lane with a transecting hip roof. The transecting roof was deleted.
26 The heritage experts, Messrs Staas and Thom, produced joint reports in Exhibits 3 and 10, the latter report pronouncing agreement that the changes to the garages and lofts addressed Issues 1, 2, 5 and 6.
27 Bulk and scale and shadows are reduced to acceptable levels.
28 The wider side setbacks also enable corridors of views from the lane to the rear facades of the terraces that are important in retaining the sense of place of the Paddington Conservation Area and the observation of Nos. 124, 126 and 128 as a cohesive group of three, and it also prevents the lanes becoming tunnels of just garage doors.
29 The experts also agreed that the garage doors need not be reduced to 3.3 m.
30 The 4.6 m width proposed is acceptable, in their opinion, as is the garages going full width of the allotment.
31 Larger setbacks at the loft level provide the articulation and the reduction of bulk and scale necessary.
32 The heritage experts agreed the colour scheme in Exhibit 11, as amended by hand, is acceptable.
33 They also agreed that, rather than require amended drawings, the changes could be clearly defined by conditions and these were put forward in Exhibit 12.
35 Ms D Owens of 6 Arden Street Waverley, gave evidence for the church and the kindergarten, the latter of which she is the voluntary manager. Her remaining concerns and summary are:34 The objectors were involved in the negotiations just before the hearing and two were satisfied by the changes.
36 This was answered by the louvre screens proposed in Exhibit F which also addressed privacy of persons in the loft being able to look into the private courtyards and family rooms of Nos. 124, 126 and the rear yard of 128. The loft windows faced back towards the main terrace houses.
1. Potential for overlooking of the children’s outdoor play area from the loft windows.
2. The second of Ms Owens’ concerns was the rather stark appearance of the original proposal of the garages and loft that would have placed a sheer wall on the boundary of the kindergarten play area.
37 This was answered by the lofts being stepped back 2 m from the boundary and the wall of the garages being only just above the existing fence height.
38 Also, on the 2 m wide setback of the roofs of the garages, shrubs were to be grown that would soften the form of the lofts and in the courtyards adjoining the boundary fence. Camellias are to be grown that would reach higher than the fence and be seen from the kindergarten.
40 This change was favoured by the heritage experts also in order to open out the sightline from the laneway to the rear facades of the terrace houses.39 Ms Owens was happy with those changes and said the previous lattice screen on the side of the garages was no longer necessary.
3. The third of Ms Owens’ concerns was about the trees in her play area as they provided shade and an attractive outdoor setting for the children.
41 This was answered by the council’s arborist and Mr Richards conferring and agreeing on conditions that would protect the trees.42 Root mapping within the subject No. 124 had been done, and groundwater supply, and sufficiency of the oxygen levels in the soil profile were assessed. Some pruning of the crown of the trees would be necessary due to the loft structure but much less so with the increased 2 m side setback. The protection of the buildings would compensate for the loss of the tree roots to be cut by the construction and prevent the trees being affected by wind.
43 Even after this evidence, Ms Owens was still concerned about the trees.
44 I note that recommendations A, B and D of the Richards report had not been incorporated in the draft conditions so I insert them.
4. The fourth of Ms Owens’ concerns was the inconvenience and noise that could be caused during the peak times of arrival, departure, drop-off and pick-up of children via the rear lane, and the hours of sleeping the children need during the day and the days of the week that the kindergarten operates.
45 The applicant agreed to insert conditions to avoid noise disturbance or construction vehicles in the laneway at appropriate times.
46 I noted the narrowness of the laneway and that adjacent garages could not be accessed if a construction vehicle was stopped at the site in the laneway.
48 Conditions were inserted, including the need for a construction traffic management plan.47 The applicant agreed that construction vehicles should not be in the laneway at peak periods; and a traffic flagman should be in the lane at any time that construction vehicles are there to control traffic and alert the driver to move the vehicle.
5. The fifth of Ms Owens’ concern was about dust and lead based paint removal during construction.
49 These had not been included in the construction management plan and were added. These conditions were in Exhibit 12 and Exhibit J.50 At the end of the hearing there was no planning reason for refusal. However, the applicant had some objections to conditions.
51 The tree damage security deposit in Conditions 13 and 29 were objected to on the grounds of no power to impose. The respondent clarified that, although the trees on the kindergarten site were named in the condition, the huge street tree in Paddington Street outside the site was also named, and a proper reading of the condition showed it was the only tree for which a deposit was required. Also the Thyer tree valuation was an appropriate method of setting the monetary figure, and, there is power under the statutes for trees and works on public property to require security deposits.
52 I accept that submission. Also, the applicant had the draft conditions two weeks before the hearing and had not raised the matter until final submissions.
53 The respondent did agree to add to Condition 29 that the security deposit will be released after the issue of the occupation certificate and after the council’s arborist has issued a written advice that the Ficus protection methods have been adequate and the tree is in good health.
54 The applicant also objected to the development levy in Condition 29 under s 94A of the Environmental Planning and Assessment Act 1979 .
55 The applicant submitted that the proposal changed six flats into two houses so there could be no nexus of increased demand for council facilities and services and it should not be charged.
56 The respondent pressed that the Woollahra s 94A Development Contributions Plan 2005 had been approved by the Minister and was a fixed development consent levy of one per cent of the construction cost of any project.
57 Section 94A is different to a s 94 Community Facilities and Services Contributions Plan. In s 94A there is no nexus requirement.
58 Woollahra had adopted that process partly because the s 94A plan avoids constant argument about the justification for, and the monetary amount of community facilities and services contributions. It simply provides a uniform levy across all works requiring development consent.
59 In reading the Act I note s 94B(4) that, unlike s 94, the Court is denied power to disallow or amend a s 94A levy in an appeal. Also, the applicant had the condition two weeks before the hearing and only raised it in final submissions.
60 The applicant agreed Condition 40 dilapidation reports should include Nos. 116 to 122, the church and kindergarten.
61 The respondent agreed Condition 55 should be deleted.
62 The applicant sought to delete Condition 9 and insert a new Condition 8 as in Exhibit J. The respondent said Conditions 8 and 9 work together. Condition 8 controlled the hours of all activities on the construction site.
63 Condition 9 focussed on the heavy noise producing uses of jackhammers, compressors and machinery of any kind to prevent their use before 9am, between noon and 2 pm and after 4 pm, and also to require 15 minute breaks in every hour of use to give relief to nearby residents and, in this case, the kindergarten within this high density residential area of Paddington.
64 It is a standard condition of council I was told. I note that the kindergarten only operates on Monday, Tuesday and Friday so the lunchtime prevention of noise on Wednesday and Thursday is not required on its account. The respondent pressed that the lunchtime break is also needed for the nearby residents and, for that matter, the construction workers’ lunch hour, not just the kindergarten. I accept the respondent’s submission and retain Conditions 8 and 9 in Exhibit 9 and not Exhibit J.
66 Therefore the orders of the Court are:65 Overall, with the conditional changes to the plans and the construction conditions, I have concluded the proposal will be sufficient to meet the objectives of the applicable statutes and controls.
1. The appeal is upheld.2. Development consent is granted to alterations and additions to Nos. 124-126 Paddington Street, Paddington, as shown on drawings numbers as below:
Drawing
No.
Issue
No.Title Drawn by Date WF05
01 Lower Ground Floor Plans Garage Floor Plans
IUS Pty Ltd
April 06 WF06
01 Ground Floor plans & Garage Loft Plans
IUS Pty Ltd April 06 WF07
01 First Floor & Garage Roof Plans
IUS Pty Ltd April 06 WF08
01 Attic Floor plans
IUS Pty Ltd April 06 WF09
01 Roof & Site Plans
IUS Pty Ltd April 06 WF23
01 Elevations
IUS Pty Ltd April 06 WF24
01 Garage Elevations
IUS Pty Ltd April 06 WF25
01 Elevations
IUS Pty Ltd April 06 WF26
01 Elevations
IUS Pty Ltd April 06 WF40
01 Section 1 – No. 124
IUS Pty Ltd April 06 WF41
01 Section 2– No. 126
IUS Pty Ltd April 06 LS01
00 Soft Landscape
IUS Pty Ltd April 06 FSR02
01 FSR and Open Space
IUS Pty Ltd
May 06 L01A
A Proposed Landscape – Roof Level
One Plus
June 06 124 Paddington Street, Paddington Garage Footing Detail (2 Sheets)
F & L Building Consultants 11 July 06 LP01 & LP02
00 Landscape Proposal
Carlos Antolin Bracho Nov 05 Exhibit F
Garage – Rear courtyard elevation/timber privacy screen
3. The exhibits are returned to the parties except Exhibits A, E, F, H, 1, 3, 5, 9, 10, 11 and 12.All as amended by and built in accordance with the conditions in Annexure ’A’ hereto.
___________________
K G Hoffman
Commissioner of the Court
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