Lang B v Woollahra Municipal Council

[2007] NSWLEC 679

Land and Environment Court

of New South Wales

CITATION:	Lang B v Woollahra Municipal Council [2007] NSWLEC 679
PARTIES:	APPLICANT: Bruce Lang RESPONDENT: Woollahra Municipal Council
FILE NUMBER(S):	10319 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Heritage
LEGISLATION CITED:	Woollahra Local Environmental Plan 1995, (WLEP) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	12 October 2007 and 17 October 2007
EX TEMPORE JUDGMENT DATE:	17 October 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr K Webber, solicitor with Ms S Clarke-Nash, solicitor SOLICITORS: Wilshire Webb Staunton Beattie RESPONDENT: Mr M J Connell, solicitor SOLICITORS: Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

17 October 2007

10319 of 2007 - Bruce Lang v Woollahra Municipal Council

JUDGMENT

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Woollahra Municipal Council (the council) of a development application to alter and add to a single-storey dwelling house and to change the use from residential to ‘medical consulting rooms’ at Lot 2, DP 70807, being No 20 Junction Street, Woollahra, NSW, 2025.

2 I visited the land in company with the parties on the morning of the first day of the Section 34 Conference. The conference was adjourned to permit the nearby objector Ms Holmes to be heard and to allow the applicant to amend the plans to better address the heritage concerns of the council.

3 I have concluded that that as the car parking associated with the change of use was not pressed as a reason for refusal by the council and the heritage aspects of the design have now been satisfactorily addressed the application should succeed.

The land

4 The land is situated on the western side of Junction Street between Carroll and Evesson Lanes. It is rectangular in plan shape, with northern and southern boundaries of 30.48m, and eastern and western boundaries of 6.095m and 6.11m, respectively, giving an area of 186m2. The land falls about 1m from east to west.

5 Erected on the land is a single-storey terraced house with a car space at the rear off the 5.6m-wide Dyson Lane.

6 Nearby are a mix of dwellings including ‘Victorian’, ‘Federation’ and interwar period buildings.

7 To the north the land abuts No 22 Junction Street that is a part single-storey and part two-storey ‘Victorian’ dwelling with a car space at the rear.

8 To the south the land abuts No 18 Junction Street that is occupied by a single-storey ‘Victorian’ dwelling house with parking at the rear off Dyson Lane. A development application has been lodged with the council to alter and add to this dwelling and has been refused consent.

9 To the south, there is Sid Einfield Drive and under that the entry to Westfield Shopping Centre car parking area that are prominent elements within the streetscape.

Relevant planning controls

Woollahra Local Environmental Plan 1995, (WLEP)
10 Under the provisions of the WLEP the land is zoned Residential 2(b) and the proposal as ‘medical consulting rooms’ is permissible with consent.
11 Other planning controls include:
· State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; (BASIX Policy)
· State Environmental Planning Policy No 55 – Remediation of land, (SEPP55);
· Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSHC);
· Woollahra Section 94A Development Contributions Plan 2005, (DCP94);
· Woollahra Heritage Conservation Area Development Control Plan 2003, (WHDCP);
· Woollahra Access Development Control Plan, (WADCP);
· Development Control Plan for off-street car parking provision and servicing facilities, (DCPP);
· Council’s Advertising and Notifications Development Control Plan, (DCPN).

12 Under Part C4, WHDCP, 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.
13 Under Part C5, WHDCP, double-storey additions at the rear of single-storey houses that are not to be visually disruptive as seen from the public domain are permitted.
14 Under the general controls for development the following objectives and controls apply under the WHDCP.
· O3 To encourage the retention or creation of useful open space at the rear of sites.
· C2 Air-conditioning units not to be located on any part of the roof.

15 Under the WADCP the proposed change of use from a dwelling house to ‘medical consulting rooms’ changes the classification of the building, as set out in the Building Code of Australia, from a Class 1 to a Class 5 or 6 and incorporates alterations and additions. The building is required to be fully accessible for the disabled.

16 There would be a shortfall of 2.2 on-site car parking spaces under the DCPP. It required 5.2 spaces and two spaces are provided and there is an existing shortfall of one space and the additional parking demand is 2.2 spaces.

The proposal and its history

17 Development application No 759/2006/1 was lodged with the respondent council on 01 November 2006 to alter and add to a single-storey dwelling house on the land to provide accommodation for ‘medical consulting rooms’ for use as an osteopathy clinic. The original plans were prepared by David E Phillips & Associates Pty Limited architects and the amended plans were prepared by Teknemodus Pty Limited.

18 It is now proposed to carry out alterations and additions to the single-storey dwelling house to provide:

Ground floor

· Demolish the existing rear extension and construct a boundary-to-boundary addition consisting of a waiting room and two treatment rooms, bathroom and stair to first floor.

· Two undercover car parking spaces with access off the rear lane under the first floor extension.

First floor

· Construct a roof that continues the pitch and ridge height of the existing building on Junction Street towards the west and to re-roof with corrugated iron ‘Colourbond’ to contain an office, ensuite, store and bathroom;

· Construct a 5.2m section boundary-to-boundary with a new flat roof containing two treatment rooms.

· Construct a planter bed to the rear western addition.

19 In order to maintain the height of the existing roof over the proposed rear extension and a rear section of roof below the ridge of the existing roof, a drop in floor levels of 1.6m is proposed between the original floor level at the front and the level of the addition to the ground floor at the rear. Wheelchair access is proposed to the ground floor by means of a ramp from the front to the new ground floor at the rear.

20 It is also proposed to change the use of the premises from a dwelling house to an osteopathy clinic occupied by three practitioners, two massage assistants and one receptionist. There will be four treatment rooms.

21 Hours of operation of the ‘medical consulting rooms’ would be:

· Monday to Friday 8.00 am to 6.30 pm.

· Saturday 8.00 am to 12.00 noon.

22 The updated compliance table is:

Compliance table - WHDCP

Site Area (186m2)	Existing	Proposed	Control	Complies
Floor Space Ratio (m2)	0.55:1 (102.5m2)	Around 0.95:1 (around 176.7m2)	0.95:1 (176.7m2)	Largely complies
Deep Soil Landscaped Area (m2)	5.5m2	14.5m2	8% (14.88m2)	Largely complies
Private Open Space Per Dwelling	Nil	Nil
Car Parking Spaces	1	2	Maximum of 2 for a dwelling subject to no loss of private open space	Shortfall of 2.2 spaces

Notification

23 The application was notified to thirty-five nearby owners and occupants on 15 November 2006 and the council received one objection, which raised the issues of inadequate on-site car parking and non-conformity with the residential nature of the street.

24 Internal referrals and responses from the council’s Heritage Officer (refusal), Trees Officer (conditional approval), Fire Officer (conditional approval) and Environmental Health Officer (conditional approval) were received.

The council’s decision
25 Before the council could determine the application, the applicant had appealed.
26 The council considered that the application should be refused for reasons that it.
· Failed to comply with the aims and objectives of WLEP and the heritage objectives in cl 2(2)(g)(ii), and therefore failed to satisfy cl 8(5).
· Failed to comply with the relevant provisions of the council’s HCDCP.
· Not in the public interest.

27 The council considered the nature and extent of the environmental impact of the proposal was likely to be:

Floor Space Ratio
The extent of non-compliance with floor space ratio control is minor. [Now largely in compliance]

Deep Soil Landscaping
The extent of non-compliance with deep soil landscaped area control is unchanged from existing. [Now almost in compliance]

Private Open Space
The extent of non-compliance with private open space area control is unchanged from existing.

Boundary-to-Boundary Development
The extent of non-compliance with the side boundary setback control at first floor level to the rear addition was originally significant in terms of bulk and the effect of this on the adjoining sites. [Now with the amended design it is largely satisfied]

28 The appeal was filed on 16 April 2007 as a deemed refusal.

29 At the Section 34 conference the Court heard evidence on behalf of the respondent council from Mr K J Saszczak, town planner; Ms L Thom, heritage officer of the council and Ms Kerrie Holmes, resident of No 5 Junction Street, Woollahra.

30 On behalf of the applicant Ms A Ekholm, architect; and Mr S Davies, heritage consultant gave evidence.

31 Mr K J Saszczak, prepared the statement of basic facts dated 28 May 2007 that now has been amended in the light of the agreement reached in respect of the amended plans.

The contentions

32 On 29 May 2007 the council filed a statement of contentions.

Car parking
The aims and objectives of the WLEP 1995, as stated in 2(2)(d)(iv) include:
“To improve the provision of car parking and reduce conflict between resident and visitor demands for car parking space in residential areas.”

The development provides inadequate on-site parking and it has not been demonstrated that there is sufficient public parking available off-site to cater for the extra demand.

Intensity of use
The objectives of the Residential 2(b) zone, as stated in clause (c) include:
“To allow non-residential development of low intensity which is compatible with the residential character and amenity of the locality.”

The proposed development complies with the number of occupants permitted by the definition of medical consulting rooms. The intensity of use permitted by the definition is a maximum and to operate at this maximum, the form of the development must be appropriate and adequate facilities must be provided to cater for the use. The intensity of the proposed development, in terms its built form and parking generation, exceeds the capacity of site and is inconsistent with the amenity of the locality.

Heritage Conservation
The aims and objectives of the WLEP 1995, as stated in 2(2)(g)(ii) include:
“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.”
The extent of the demolition of the principal roof form is a concern. It will lead to the loss of an original chimney and the loss of the intact rear roof form that is shared by 18 Junction Street. The front gate must be left in its existing location as the arrangement of front fences is significant to the group. The proposal significantly diverges from the Woollahra Heritage Conservation Area DCP controls in the following respects:

· Original principal building forms are to be retained (includes roof and chimneys). The demolition of the large portion of the principal roof is not acceptable.

· The two surviving principal roofs at 20 and 18 Junction Street are an existing pattern that should not be altered.

· The bulk scale and height of the building overwhelms the original building.

· Chimneys and roofs must be retained. The removal of a large portion of the principal roof and the loss of the chimney does not comply.

· Original fences must not be altered. The relocation of the front gate does not comply.

· The flat parapet roof is not a traditional roof form.

· Whilst the addition is a pavilion type it requires the demolition of the rear of the principal building form.

· The double-storey additions will be seen from Junction Street.

Public Interest
The proposal will not achieve the relevant planning objectives.

33 The council stated the basis of its contentions:

Council has set out certain principles of public interest with the following relevant consideration:
“...if the development will result in the realization of the applicable planning objectives you should be able to conclude that approval will be in the public interest.”
The development fails to comply with the aims and objectives of the WLEP 1995 in relation to traffic and transport and the objectives of the zone. Accordingly, the development is not in the public interest.

34 Heritage was the salient issue.

The evidence and findings

35 On the basis of the amended plans the parties agreed for the Commissioner to decide the matter under s 34(3)(a) of the Land and Environment Court Act 1979.

Heritage

36 During the Section 34 conference held on site on 12 October 2007, the parties agreed to explore an amended design that continued the front roof form through to the rear section. When the Section 34 conference was reconvened on 17 October 2007 the architect had prepared plans showing the amended design that the parties were agreed met the council’s heritage objectives.

37 I am satisfied that the design as amended is in a form that the Court in the proper exercise of its functions may approve, and that the proposal now largely meets the heritage objectives of the WLEP and HCDCP.

Other matters

38 Ms Kerrie Holmes, resident of No 5 Junction Street, Woollahra was concerned for likely impacts of the change of use. She added that she was satisfied that the council had addressed the heritage concerns but was not sure that anyone has addressed the ‘human environment’.

39 She was concerned that to the south of Evesson Lane, that runs parallel to Edgecliff Road, there are mostly residences with some commercial uses mixed in. She noted that there was no proposal for anyone to live at No 20 Junction Street and this would be likely to cause a change in the human environment and the cohesiveness of the residential community.

40 She was also concerned that approval of the medical consulting rooms would lead to an exacerbation of the existing parking and traffic problems in the street. She pointed to the fact that there was already in adverse impact on amenity of the local area due to pollution cased by cars entering and leaving Westfields car parking area.

41 I am satisfied that given that under the zoning provisions of the WLEP that allows for ‘medical consulting rooms’ within the Residential 2(b) zone to occupy the whole of a dwelling house, that the matter of car parking and traffic as raised by Ms Holmes is largely beyond the scope of this appeal. It is a matter that was not strongly pressed by the council in this appeal. I would not refuse the application for reason of its shortfall in car parking.

42 For the above reasons, the appeal is upheld.

Conditions

43 The conditions are those in Exhibit 4 as amended during the Section 34 Conference.

Orders
44 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 759/2006/1 lodged with the respondent council on 1 November 2006 to alter and add to a single-storey dwelling house on the land to provide accommodation for ‘medical consulting rooms’ for use as an osteopathy clinic, as amended, at Lot 2, DP 70807, being No 20 Junction Street, Woollahra, NSW, 2025 is approved subject to Conditions A1 to K10 in Annexure A

3. The exhibits except for Exhibits A, B and 4 are returned.

S J Watts

Commissioner of the Court

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