K Z Holdings Pty Ltd v Woollahra Municipal Council

[2015] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:	K Z Holdings Pty Ltd v Woollahra Municipal Council [2015] NSWLEC 1181
Hearing dates:	8 April 2015
Date of orders:	25 May 2015
Decision date:	01 May 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to the filing of consolidated conditions of consent
Catchwords:	MODIFICATION APPLICATION: Extensions and alterations; visual impact on heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Woollahra Local Environmental Plan 2014
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	K Z Holdings Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Applicant: Mr M Campbell (Solicitor) Respondent: Mr S Patterson (Solicitor) Solicitors: Applicant: Mark Campbell & Co Respondent: Wiltshire Webb Staunton Beatty Lawyers
File Number(s):	10034 of 2015

Judgment

1. COMMISSIONER:   The applicant appeals Woollahra Municipal Council’s refusal of Modification Application No. 371/2011/3 for alterations and additions to a dwelling at 37 Grosvenor Street, Woollahra (the site).

2. The appeal is made under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The site and its locality

3. The site is on the eastern side of Grosvenor Street within the Woollahra Heritage Conservation Area. The site backs onto Dyson Lane.

4. According to the joint report of the heritage experts (exhibit 3), the dwelling on the site is a single storey Victorian Italianate style cottage with a decorative front parapet. The roof has a single pitch and the rear of the dwelling, and when viewed from Dyson Lane, is a mix of alterations and additions carried out over the decades.

5. The dwelling is sandwiched between two adjoining two storey Victorian terraces. Number 41 Grosvenor Street to the north is of a similar style and vintage with a more recent first floor addition visible behind the front parapet. Number 43 has a single storey frontage with a dormer window.

6. The heritage experts agree that “Grosvenor Street in the vicinity of the site is characterised by a mix of quite tightly packed single and two storey late Victorian terrace houses, progressively stepping down the sloping topography”. Grosvenor Street slopes down from south to north; there is a slight cross-fall from east to west.

7. Bondi Junction business district and interchange is within about 100 m to the south of the site.

Relevant background and the proposal

8. In December 2011, Woollahra Municipal Council approved Development Application DA No. 371/2011/1 for alterations and additions to the dwelling on the site. The approval included: the partial demolition of the ground floor twentieth century addition at the rear, construction of a new two storey addition at the rear; construction of a roof deck behind the parapet; lowering the roof of the principal building by 1m and replacement with roof sheeting; and associated works.

9. In February 2012 the applicant lodged Modification Application DA 371/2011/2 pursuant to s 96 of the EPA Act seeking various internal and external modifications. These included: relocation of the first floor towards the street by 1.3m; relocation of the deck and skylight to the front of the first floor; addition of a deck at the rear of the first floor (conditioned to be replaced with a Juliette balcony – Condition C1(d)); deletion of a condition relating to the rear setback; and other specified internal and external modifications. Council granted conditional approval on 11 March 2012.

10. In August 2014, the applicant lodged the modification application the subject of this appeal. Council refused the application on 29 October 2014.

11. This application seeks approval for the following:

• Reconfiguration of various elements of the ground floor;

• Minor changes to the rear yard;

• An extension above the principal building/ forward of the first floor front building line to accommodate a new bedroom and deck area;

• A boundary to boundary addition to the rear of the first floor involving the enlargement of bedroom 3 and two new windows and Juliette balcony to the rear elevation (in accordance with Condition C1(d) – previous consent)

• Alteration of the roof form to accommodate storage space within the roof; and

• Other additions and alterations to elements of the first floor.

The issues

12. Council contends that the appeal should be refused for the following reasons:

1. Unacceptable heritage and streetscape impacts – principally as a consequence of the proposed forward extension of the first floor extension, the demolition of the existing roof form, and the modification of the roof plane at the rear.

2. Excessive height, bulk and scale; the proposed boundary to boundary addition to the rear will have unacceptable impacts on the adjoining property to the south (No 35).

3. Unreasonable and unnecessary overshadowing of 35 Grosvenor Street.

4. The proposal is an overdevelopment of the site as it exceeds the maximum floor space ratio (FSR) and the modifications result in a poor relationship with the principal building form.

5. The proposal is not in the public interest.

13. Apart from these contentions, the council raises concerns over the accuracy of the shadow diagrams.

14. No contention has been raised in regards to whether the modification application relates to substantially the same development as the development for which the consent was originally granted.

The assessment framework

15. Woollahra Local Environmental Plan 1995 (WLEP 1995) applies. Woollahra Local Environmental Plan 2014 (WLEP 2014) is to commence on 23.5. 2015.

16. The site is zoned Zone No 2(b) – (Residential “B” Zone) in WLEP 1995.

17. Of particular relevance is Woollahra Heritage Conservation Area Development Control Plan 2003 (WHCA DCP).

18. The relevant controls from WLEP and WHCA DCP are provided in the context of the expert evidence.

The hearing – the controls and evidence

19. The matter commenced on site as a mandatory conciliation conference pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act). However, as there was no agreement between the parties, the conciliation was terminated and the matter proceeded to a hearing in accordance with s 34AA(2)(b).

20. Expert evidence was provided for the applicant by Mr Graham Brooks (Heritage) and Mr Gregor Zylber (Planning) and for the council by council officers Ms Kate Harrison (Heritage) and Mr Simon Taylor (Planning).

21. Before terminating the conciliation, the parties had the benefit of hearing from the owner of 35 Grosvenor Street and inspecting the site from his property. His major concerns arise from the feeling of enclosure that could result from the boundary to boundary extension at the rear, overlooking from windows on the southern side of the first floor and the impact of the proposed roof on solar access to north facing windows.

22. The applicant’s architect advised that amended plans had been prepared which reduced the height of the roof and the windows in question were highlight windows. While the concerns about enclosure remained, the neighbour’s concerns with solar access and privacy were resolved.

23. The site was viewed from the opposite side of Grosvenor Street and from Dyson Lane. The heritage experts and planners identified relevant features of the streetscape, in particular the alterations to the roof of 41 Grosvenor Street, and the pattern of development at the rear of the relevant block of dwellings.

24. The applicant was granted leave to rely on amended plans. The amended plans significantly reduce the height and pitch of the rear roof form.

Heritage

25. The aim in cl. 2(1)(g) WLEP 1995 is “to conserve the environmental heritage of the area of Woollahra”. The objectives in cl. 2(2)(g) in relation to heritage conservation are relevantly:

(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;

26. Clause 28(2) WLEP 1995 in respect of development within heritage conservation areas states:

(2)   The Council shall not grant consent to an application required by subclause (1) 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.

27. There are no items listed in Schedule 3 Heritage items WLEP 1995 in Grosvenor Street, Woollahra. However, as stated earlier, the site is within the Woollahra Heritage Conservation Area and WHCA DCP applies. The Schedule of significant items in Part 5 WHCA DCP includes all properties from 27-55 and 40-64 Grosvenor Street in the Grafton Precinct. Thus the site is a significant item but it is not identified in the schedule as being an element in a group. Objective (c) in cl. 1.6 – Objectives of this plan is “to encourage the retention and appropriate development of significant items”. Clause 2.3 describes the desired future character of the WHCA.

28. During the hearing the heritage experts agreed that the meaning of ‘significant item’ has the same effective meaning as ‘contributory item’. The glossary in WHCA DCP defines the terms:

Significant item   a heritage item listed in Schedule 3 of Woollahra LEP 1995 or a contributory item identified in Part 5 – Schedule of significant items.

Contributory item   means a building, work, archaeological site, tree or place and its setting, which contributes to the heritage significance of the conservation area. The contributory properties may have historic, aesthetic, social or scientific values but will most typically have historic and/or aesthetic significance including streetscape value.

29. Relevant to the differences in opinion between the experts are the following relevant clauses in WHCA DCP. A number of other controls were referred to but they are essentially captured by the following clauses.

3.2.1 Conservation of significant items and group significant items

Explanation (in part)

In order to retain the heritage significance of the area it is important to retain the principal building forms of the significant buildings…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…

Objectives

O1   To ensure those significant items, outbuildings and their curtilages and settings are retained.

Controls (Significant items)

C1   Significant items are to be retained and conserved that is:

Their significant fabric is to be retained

Original principal building forms (including roof pitch, eaves height and chimneys), are to be retained

No alterations or additions are to be made to the original elevations, details, materials or finishes of the principal building form except to allow for restoration or reconstruction.

C3   When works are proposed to the principal building form, original external elevations, roof curtilage or setting of significant items:

Missing or damaged original forms, details, materials and finishes are to be restored or reconstructed. Reconstruction is to be based on research rather than conjecture.

3.2.3   Alterations and additions to significant items

Explanation (in part)

The controls are also designed to ensure alterations and additions to a significant item retain the contributory features and characteristics of the building and the streetscape in which it is located.

Objectives

O1   To retain the original built form of significant items.

O2   To ensure alterations or additions to significant items are designed:

To be consistent with the original architectural style, form, massing, details, materials and finishes of the item,

Not to have an adverse impact on the curtilage and setting of the item.

O3   To ensure that the various heights and setbacks of significant buildings within the streetscape are retained.

Controls – Location of additions

C2   Additions to significant items are not to project forward of the original front building setbacks nor obscure the public view of the principal building form of the item.

C3   Additions to significant items are to be located at the rear of the building.

C5   Side additions must be located behind the principal building form, be separated from the front building form by a lightwell and be shorter than the existing rear wing.

Controls – Height, form, bulk and scale

C7   The bulk, height and scale of the additions to significant items must be less than, and must not compromise or dominate the principal building form of the building.

C8   Upper storey additions that increase the building height of significant items along the street frontage will not be permitted. This applies whether or not a single-storey building adjoins or is located between significant buildings of greater height.

3.3.1   Single-storey houses

Objectives

O1   To preserve the single-storey presentation to the street of existing single-storey buildings.

Controls

C1   Upper floor additions to the principal building forms of single-storey houses will be permitted only where the upper floor can be contained wholly within the existing roof space without change to the roof pitch or eaves height….

C2   Rear additions to single-storey houses should not dominate the principal building form. The addition should have an appropriate traditional roof form that relates to the principal building form and must not exceed a height 300mm below the ridge level of the principal building form.

C3   Where additions are proposed to single-storey houses, pavilion-type forms are preferred…

C4   Boundary-to-boundary additions are permitted on the ground floor if the proposal would not adversely affect the privacy, ventilation, light or amenity of an adjoining property.

C5   Double-storey additions at the rear of single-storey houses are not to be visually disruptive as seen from the public domain. The two storey section should be linked to the principal building form by a lightweight link structure located below the eaves line of the principal building form.

30. In an internal referral response to the proposed modification application dated 17 September 2014 (Exhibit 7), Ms Harrison responded to Mr Taylor. In that referral she cites a statement of significance attributed to A. Parkins. It states:

The subject building is a single storey late Victorian Italianate terrace house known as ‘Melrose’. Externally the terrace remains largely intact and displays features typical of its Victorian Italianate style including iron fringe, decorative window and door mouldings and a decorative parapet with classical motifs. The rear of the property has been altered and is of low significance. The subject property does not form part of an intact group and the rear of adjacent properties is highly varied. The significance of the subject building lies in the intact front façade and its streetscape contribution this makes to the conservation area.

31. In preparing their joint report, the parties’ heritage experts compressed the relevant contentions into three primary questions to be considered.

• Is the proposed new accommodation sufficiently screened by the front parapet to avoid any adverse impact on the surrounding conservation area by being generally of very low or negligible impact?

• Does the proposed loss of the existing (original) roofing over the front portion of the house (principal building form) adversely affect the historical significance of the heritage conservation area?

• Is the architectural design of the steeply pitched roof over the two storey rear wing appropriate for the rear lane context of the subject property and its contribution to the significance of the heritage conservation area?

32. The heritage experts agreed that the steeply pitched roof over the rear of the dwelling was inappropriate and recommended a return to the pitch as originally approved in the 2011 consent, or some other more sympathetic roof form. Given the amended plans, the experts agreed that compressed contention 3 was resolved.

33. The principal differences between the heritage experts are whether the addition to the first storey is sufficiently set back from the front parapet so that it will not be visible from Grosvenor Street, and whether the proposed modifications to the roof form facilitate the interpretation of the original single storey building form.

34. In the joint report, Ms Harrison considers that the visual assessment provided by the applicant is insufficient to demonstrate that the forward addition would not be visible from Grosvenor Street, including through the open decorative balustrading within the parapet. In oral evidence while she agreed that the blade wall of 35 Grosvenor and the decorative element on the parapet would partially screen the addition as one walked down Grosvenor Street, she stated that the view from Grosvenor Street remained a principal concern. In response to a suggestion from Mr Brooks that the open balustrading could be blocked to prevent views through it, Ms Harrison stated that the open balustrading is a feature that should be retained.

35. While supporting a further visual assessment, Mr Brooks is confident that the parapet will sufficiently or completely screen the addition. He considers that the streetscape in the vicinity of the site is complex and that in the matter of two to three footsteps it would be difficult for anyone walking along the street to perceive anything other than the parapet. In Mr Brooks’ view, the visual impact is less than marginal and it would have an insignificant effect on the conservation value of the WHCA. In regards to the mitigation measure he suggested, he stated it is not an uncommon treatment and not really required in the circumstances but agrees that it is preferable to keep the open balustrading.

36. In regards to the front deck and demolition of the front portion of the roof, Ms Harrison stated that she had no involvement with the original approval which allowed the existing roof over the principal building form to be removed and lowered and a new front deck to be constructed above the new roof line. She stated that she would not have considered the demolition of the roof because in her view this is counter to the controls in the WHCA DCP that require the retention of the building fabric and original building forms such as roofs. Ms Harrison considers that removing the roof would not enable future interpretation of the original roof.

37. Mr Brooks suggests that given there is already approval to remove the roof, the retention of the flashing on all remaining facades is sufficient for anyone wishing to interpret the original form of the roof. In his opinion, retention of original form is fundamentally a good approach however the merits of doing so should be considered in context. In this case, Mr Brooks states that the site is sandwiched between two two-storey terraces and the expression of the building is entirely reliant on the front façade and parapet. The original roof form above the principal building form cannot be seen from anywhere except from within the site. He considers that the expression of the single storey is preserved and what is proposed meets the relevant objectives in WHCA DCP, in particular the only objective on cl. 3.3.1. In regards to controls C1 and C2 in cl. 3.3.1 (and other controls concerning massing, bulk and materials considered in cross-examination), Mr Brooks stated that these controls are not applicable as parapets are an altogether different roof form and the controls essentially relate to pitched roof forms.

38. With respect to a question regarding the ‘cantilevering’ of the deck above the new roof in the original approval, Mr Brooks stated that was to enable effective waterproofing and this could now be achieved using alternative methods that did not require an elevated deck.

32. Ms Harrison considers that the retention of flashing is insufficient to allow future interpretation. In regards to the other controls in WHCA DCP, Ms Harrison considers the intent is to retain the two front room character of the site as well as minimising any visual impact of any additions when viewed from the public domain, which in her view has not been achieved.

33. During the course of the hearing and in response to the agreed position of the heritage experts that a more accurate visual assessment would be desirable, the applicant’s architect prepared a 3D model of the site using levels and contours provided on the day by Woollahra Council. The computer generated model was shown to the experts and the Court. The actual levels on the opposite side of the road are lower than shown on section A on Plan DA 0500 Revision E (amended plans) and the result is that the proposed extension and revised roof form will not be visible above the parapet from Grosvenor Street but may still be seen through the balustrades.

34. While accepting the new evidence, Ms Harrison maintained her opinion that the view through the balustrade was still unacceptable and her concerns about the loss of the roof form remain.

Planning

42. Given the amended plans, the only remaining planning issue is the boundary to boundary extension to the upper rear portion of the dwelling. The proposed extension retains a setback of 1200 mm from the southern boundary in the centre of the dwelling but reduces the setback to zero along the rear portion in order to increase the size of bedroom 3 and create a study nook.

43. In oral evidence the planners agreed that there is no consistency to the setbacks and styles of the rear elements of the dwellings on the western side of Dyson Lane. However Mr Taylor maintains that the controls in WHCA DCP do not anticipate first floor boundary to boundary extensions. In his opinion the creation of a breezeway by way of a side setback provides amenity to adjoining properties. While considering that the impact of the proposed extension on the amenity of 35 Grosvenor Street would be minor, Mr Zylber agreed that a better planning outcome would be achieved by reinstating the side setback as originally approved. It was agreed that the positions of the proposed windows and Juliette balcony on the eastern façade would need amending.

44. As the applicant agreed with the opinion of the planners, the planning contentions were resolved. To give effect to this agreement, the planners drafted a possible condition of consent which states:

The study and bedroom 3 of the first floor is to be setback 1.2m from the southern side boundary to accord with the existing approved setback with the roof set back accordingly. The fenestration to the rear area above the awning is to be realigned to be symmetrical and the awning is not to exceed 2.6m in width.

Submissions

45. Mr Campbell for the applicant submits that the only remaining issue is the visibility of the first floor extension from Grosvenor Street and the heritage experts relative positions on the extent to which the controls in WHCA DCP should and do apply. He contends that the experts agree that the controls in the DCP are subordinate to the objectives and he presses the intent of s 79C(3A) of the Act in taking a more flexible approach to controls in a DCP. In any event, Mr Campbell maintains that the proposal meets the relevant objectives and given the considerable experience of Mr Brooks the Court should be satisfied that what is proposed will not detract from the site’s contribution to the Woollahra Heritage Conservation Area.

46. Mr Patterson for the council contends that s 79C requires consideration of all relevant planning instruments and development control plans. He maintains the Court of Appeal’s findings in Zhang v Canterbury City Council [2001] NSWCA 167 that a DCP should be a fundamental element or focal point of the decision making process. He asserts that in this case there is no need to dilute any element of the WHCA DCP because there are no inconsistencies with WLEP. In support of Ms Harrison’s opinion that the principal roof form will be unable to be interpreted, Mr Patterson presses the objectives in clauses 3.2.1 and 3.2.3 that require the retention of the original built form of significant items. Mr Patterson argues that Ms Harrison’s concerns that the additions will be visible through the balustrades and thus the integrity of the principal building form will be unacceptably compromised should be given determinative weight and that the alterations to the front portion of the dwelling should be refused.

Findings

47. With the agreement to reduce the roof pitch and reduce the width of the rear additions in accordance with the original consent, the only issue remaining to be determined is whether the addition of another bedroom and modifications to the approved deck above the principal building form at the front of the dwelling should be approved.

48. With the benefit of the site inspection, the expert evidence, and the computer generated model based on accurate levels produced at the conclusion of the hearing, and in accordance with cl. 28(2) WLEP 1995, on balance I am satisfied that the proposed modifications will not detract from the heritage significance of the item or the Heritage Conservation Area in which is it is located. That is, the proposal achieves the objective in cl. 2(i)(g) in WLEP.

49. While I accept the findings in Zhang, given the fact that the original roof over the principal building form has already been approved for removal, I find that the proposal is generally consistent with the relevant objectives and controls in WHCA DCP. In particular, I am satisfied that the proposal will not have an adverse effect on the setting of the existing dwelling/ significant item, will not obscure the public view of the principal building form of the item, and will not compromise or dominate the principal building form of the item (objectives and controls cl. 3.2.3 WHCA DCP). Similarly, the single-storey presentation to the street will generally be preserved (O1 cl. 3.3.1). Therefore I am satisfied that the flexibility intended in s 79C(3A) of the Act is appropriate in the circumstances.

50. The modelling indicates that the new addition will not be discernible above the front parapet when viewed from across the road. While I accept that the addition will be somewhat visible through the balustrades, I agree with Mr Brooks and his opinion expressed in [37] that given the varied streetscape, the projection of the blade wall on number 35, and the very short distance of travel where it may be visible, the overall visual impact on the heritage conservation area will be negligible and unlikely to be noticed by most people walking down the street. I agree with the heritage experts that the balustrades should remain open.

51. I am also satisfied that the retention of the flashing of the original roof form is sufficient in the circumstances to enable anyone in the future to understand and interpret the original roof form. In my view this is reasonable given the earlier approval to remove and lower the roof over the front portion of the dwelling and the fact that it can only be seen from the dwelling itself and not from the public domain. While I agree with the general proposition that elements not seen can have great significance and should be preserved, in the context of this particular dwelling the proposed level of interpretation would seem appropriate.

Conclusions and directions

52. Having considered the relevant matters to be considered under s 79C, I am satisfied that consent can be granted (under s 96(1A)) for Modification Application DA 371/2011/3 in accordance with the amended plans tendered during the hearing and subject to consolidated conditions of consent reflecting the agreement between the planners provided in paragraph [44] of this judgment. In the alternative, and perhaps preferably, the applicant may prepare further amended plans incorporating the changes described in that condition. A suitable condition requiring the retention of the flashing of the original roof form should also be inserted.

53. Once the agreed consolidated conditions and or further amended plans are filed and served, final orders will be made in chambers.

Directions

1. The parties are directed to advise the court of the expected date for the filing and serving of the documents referred to in [52] of this judgment via ecourt by close of business 5 May 2015.

Conclusions and orders

54. As the parties have carried out the directions made on 1 May 2015, the Orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. 371/2011/3 for alterations and additions to a dwelling at 37 Grosvenor Street, Woollahra is determined by approval subject to the modification conditions in Annexure ‘A’ and the consolidated conditions of consent in Annexure ‘B’.

3. All exhibits except 1, A and B are returned.

___________________

Judy Fakes

Commissioner of the Court

10034 of 2015 Fakes Annexure A (C) (12.4 KB, pdf)

10034 of 2015 Fakes Annexure B (C) (263 KB, pdf)

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Decision last updated: 26 May 2015