Leal v Woollahra Municipal Council

[2008] NSWLEC 1253

Land and Environment Court

of New South Wales

CITATION:

Leal & Anor v Woollahra Municipal Council [2008] NSWLEC 1253

PARTIES:

APPLICANT
Mercedes and Jeronimo Leal

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10283 of 2008 and 10440 of 2008

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Alterations and additions to convert two dwellings into one.
Impact on heritage significance of the Paddington Conservation Area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995

CASES CITED:

Pathburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING:

04/06/2008

EX TEMPORE JUDGMENT DATE:

4 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson, barrister
SOLICITORS
Wellings Lawyers

RESPONDENT
Ms M Hawley, solicitor
SOLICITORS
Lindsay Taylor, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

4 June 2008

10440 of 2008 Leal v Woollahra Municipal Council
10283 of 2008

JUDGMENT

1 These are two appeals against the refusal by Woollahra Municipal Council (council) of the following development applications at 124 and 126 Paddington Street (the site).

2 Appeal No. 10283 of 2008 is to amalgamate the two lots into one allotment.

3 Appeal No. 10440 of 2008 is for alterations and additions to convert the two existing dwellings into a single dwelling.

4 During the hearing, the parties agreed that development approval to amalgamate the sites was not required and that Appeal No. 10283 of 2008 should be discontinued.

5 The key contention was whether the proposal would have an adverse impact on the heritage significance of the Paddington Conservation Area from the internal and external changes to the building and the provision of carparking.

6 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by council on 20 May 2008.

Background

7 Each lot is 6 m wide, 32 m deep, with a site area of 192 sqm. The site drops from Paddington Street to Paddington Lane at the rear. Each lot is developed with a terrace house that has a basement level and two levels above street level. The terraces are part of a group of three terraces within the Paddington Conservation Area.

8 Alterations and additions to each terrace were approved by the Court on 20 October 2006 (Appeal No. 10317 of 2006). The approved works included the addition of an attic in the roof of the existing terraces and a new garage loft, accommodating two cars for each of the dwellings at the rear of the property.

9 These works are currently under construction, although the construction of the garage loft has not commenced. The current application is for internal and external changes to convert the existing terraces to a single dwelling. The overall form of the development is the same as that approved by the Court. The proposal would provide garage accommodation for four cars, accessed off Paddington Lane.

10 The Court visited the site and heard evidence from:

• Dr N Mistilis, neighbour
• Ms D Owens, the honorary administrator of the Church of Christ Kindergarten, and
• Mr John Mant on behalf of the Paddington Society.

11 The objectors were principally concerned about the amalgamation of the two dwellings into one dwelling and the external changes to the building, in particular, the loft and garages to the rear of the property, which they considered to be of excessive bulk and scale.

12 Ms Owens stated that having viewed the mock-up of the garage and loft structure, she considered it to be unacceptable when viewed from the lane and from the play area of the kindergarten. She was also concerned about privacy issues from the side window and the impact of the garage on the tree located in the kindergarten property.

13 For the council expert evidence was provided by:

• Ms L Thom, heritage consultant, and
• Mr T Wong, town planner.

14 For the applicant expert evidence was provided by:

• Mr R Staas, heritage consultant, and
• Mr G Goodyear, town planner.

15 These experts are the same experts who provided evidence in Appeal No. 10317 of 2006.

Internal changes

16 Mr Staas and Ms Thom agreed that the amendments (Exhibit C) to the rear fenestration and the provision of a projection to express the party wall would enable the interpretation of the terraces from the rear as two separate dwellings. They raised no objection to the changes to the front of the terraces. The key difference in opinion related to the extent of the internal changes and whether these would adversely affect the significance of the conservation area.

17 The experts maintained a philosophical difference of opinion as to the extent that internal changes were relevant to a consideration of the significance of the conservation area. Ms Thom considered that it is good conservation practice to maintain original fabric, both internally and externally, and that this is what the objectives of Woollahra Local Environmental Plan 1995 (LEP 1995) and Paddington Development Control Plan 1999 (DCP 1999) are seeking to achieve. This, in her opinion, is reinforced by the controls in the Paddington Conservation Area Development Control Plan 2008 (DCP 2008). Ms Thom was particularly concerned about the changes to the dining room at the lower ground level and the introduction of ‘ovate’ lobbies.

18 Mr Staas considered that internal alterations to a building in a conservation area are relevant only if it affects significant fabric and the external form of the building. In his opinion, the conservation area controls relate to conserving the external appearance of buildings. He stated that significant fabric was not being affected as the terraces had undergone substantial changes when previously converted to a residential flat building. Further, he considered that the internal changes maintained the important elements such as fireplaces and largely retained the party wall. He considered that sufficient internal fabric remained to interpret the house as two separate dwellings. Changes to the dining room and the ‘ovate’ lobbies were, in his opinion, acceptable and resulted from functional requirements. He did not consider that the internal changes would adversely impact on the exterior of the building dwelling or the conservation area.

Findings

19 I accept Mr Staas’s opinion. The proposed internal changes do not ‘gut’ the building leaving only the façade, as suggested by Ms Thom. Important elements are retained such as the fireplaces and the party wall. The changes to the dining room and the introduction of the ‘ovate’ lobbies are uncharacteristic of terraces of this period, however, I do not consider that these changes of themselves would adversely affect the significance of the conservation area given that they are internal and do not affect the external form of the building or significant fabric. The buildings are not heritage items and these changes are required to meet the functional requirements for the conversion to a single dwelling.

Garage and loft

20 The other key disagreement between the parties and the principal concern of the residents in both this appeal and Appeal No. 10317 of 2006 is the garage and loft building. This provides parking for four cars at ground level and extends the length of the 12 m rear boundary. The garage doors are each 4.6 m wide. The loft is set back two metres from the side boundaries, which reflects the conditions imposed by Commissioner Hoffman in his determination of Appeal No. 10317 of 2006.

21 The loft provides a bedroom, living, bathroom and tea making facilities, which include a sink and fridge. Externally, the garage and loft are the same as that approved in Appeal No. 10317 of 2006, although windows are proposed on the side elevation which, as I understand, were deleted in the previous approval.

22 Mr Wilson, for the applicant, submits that the impacts of the garage and loft were assessed under the previous application and found to be acceptable. The planning controls, the overall form and the experts have not changed. In his submission, there is no material change that would result in a different decision being made.

23 Ms Hawley, for the council, submits that the application must be considered on its merits and that the current proposal is for a single dwelling and the car parking requirements exceed those in DCP 1999, which permit a maximum of two on-site parking spaces for a single dwelling. The previous application was for two dwellings and therefore complied with the requirements of DCP 1999. She submits that the impacts of the development must be assessed against the reasonableness of the expectations of the occupants and whether the development complies with the controls.

24 Mr Goodyear accepted this proposition, but stated that the previous approval was a relevant factor, which he had considered in his assessment of the development application, particularly as this consent had been acted upon. He noted that he would have assessed the current application differently if the previous consent were not in existence. In his opinion, the acceptability of the proposal under the previous consent and the 12 metre frontage of the property were factors which justified the non-compliance with the DCP control of a maximum of two car spaces for a single dwelling.

25 Mr Wong’s opinion was that the previous application provided for the reasonable car parking requirements of two single dwellings and the impacts were assessed on the basis of a complying development. He recommended a condition of consent that the garage and loft at 124 Paddington Street, be deleted and replaced with deep soil planting. He considered this would have less impact on the conservation area as it would open up views of the rear of the terraces as well as reducing impacts on the tree and the bulk of the proposal when viewed from the lane and the kindergarten.

26 Ms Thom initially assessed the application on the basis of the garage and loft being approved and therefore not part of the current application. She subsequently supported Mr Wong’s recommendation that the garage and loft at 124 Paddington Street be deleted.

27 Mr Staas considered that the impacts of the garage and loft were acceptable as the laneway is characterised by similar structures. In his opinion, the removal would only provide oblique views of the terraces and would be of little benefit as it is likely to be replaced by landscaping which would also obscure views of the terraces.

Findings

28 The key difference between the parties is the weight to be given to the previous approval. While the previous approval and the assessment of the merits of that application are relevant matters to be considered in this application, the principal focus of my assessment must be the provisions of DCP 1999. There is clearly a significant change in the circumstances of the previous approval being for two dwellings and the current application being for one dwelling, which renders the proposal from complying to non-complying with the numerical requirements of cl 5.2.6 of DCP 1999.

29 It is therefore necessary to assess whether, despite the non-compliance with the numerical controls, the proposal meets the objectives of the control. The explanation to cl 5.2.6 relevantly states that:

The rear lanes of Paddington are now lined with garage doors and brick walls. They form an impenetrable, unattractive barrier between private gardens and the public spaces and have an adverse effect on the character of laneways. There is an alienation of the pedestrian in these spaces. This plan aims to redress the treatment of these forms….

30 The relevant Objectives includes:

03: To improve the character of laneways where unsympathetic earlier development such as high brick walls and full width garages has eroded these urban spaces.
……
05: To encourage development that is scaled for the pedestrian in terms of height, articulation and modulation.
……
07: To provide a balance between vehicle parking on sites, soft landscaping and useable open space.
08: To ensure that the design of garages, carports, fences and gates are sympathetic in their massing, form and scale to the relevant aspects of the historic context and setting of the building.

31 The relevant Guidelines and Controls include:

G7: Where rear lane parking can be achieved proposals must provide an acceptable interface between the private and public domain. An acceptable interface can be achieved by incorporating elements such as pedestrian gates, timber and transparent fencing, planting along rear boundaries and minimal widths of garage doors and solid walls.
G8: On rear lane frontages, elements which isolate the public and private domain such as blank walls and boundary to boundary garage doors are not acceptable. Suitable widths of garage doors are shown and described in the diagrams to the table within this section.
…..
G12: Loft structures over garages may be acceptable, subject to:
• minimal adverse impact on the amenity of the property, neighbouring properties and public open space;
• The form, bulk and scale of the structure not overwhelming the existing building on the site; and
• the structure not adversely affecting the character of a street or laneway.
G13: Where onsite parking is acceptable having regard to the guidelines and controls in this section, the following parking may occur:
• dwelling houses may provide a maximum of two onsite parking spaces. The second space can be stacked;

32 These controls clearly attempt to limit the impact of garages, which can have a detrimental effect on the significance of the conservation area. This detrimental impact is demonstrated by the existing character of Paddington Lane, which is dominated by single storey garages along the rear frontage of the properties. However, while there are loft structures, the number does not dominate the streetscape nor are there examples of adjoining lofts.

33 Single storey garages permit views to the rear of terraces and provide less enclosure of the lane. The lofts tend to block views to the rear of the terraces and significantly increase the bulk of built form along the laneway.

34 Mr Goodyear acknowledged that a continuous row of lofts would have a detrimental impact on the lane, but stated that this is unlikely to occur as DCP 2008 does not permit lofts over garages.

35 Commissioner Hoffman recognised the issue of bulk on the laneway and the importance of setback by requiring each of the lofts to be set back two metres from the side boundary. He stated:

The wider 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 in the Paddington Conservation Area and the observation of Nos. 124, 126 and 128 as a cohesive group of three and also prevents the lanes becoming tunnels of just garage doors.
….
Larger setbacks at the loft level provide the articulation and reduction of bulk and scale necessary.

36 While I acknowledge that the impacts of the previous proposal were agreed to be satisfactory and to provide an acceptable solution for meeting the parking needs of two dwellings, I do not accept that a structure of the bulk proposed is acceptable for a single dwelling.

37 The Court had the advantage of viewing a mock-up of the proposed garage and loft. I accept Mr Wong’s opinion that the deletion of the garage and loft at 124 Paddington Street will provide opportunities for viewing the rear of these terraces and other terraces in the laneway, enable the provision of landscaping and the opening up of the laneway. The removal of this part of the garage and loft will also reduce the perception of bulk from the play area of the adjoining kindergarten, where it appears as a significant structure when viewed from an outdoor play area that is utilised by small children.

38 In reaching this decision, I am mindful of the principles espoused by Senior Commissioner Roseth in Pathburn v North Sydney Council [2005] NSWLEC 444, in particular in answering the questions at [26]:

• How necessary and/or reasonable is the proposal causing the impact?

• Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

39 The proposal is beyond the reasonable expectations for on site parking in Paddington for a single residential dwelling. There will be an impact as a result of a proposal, which does not comply with either the numerical or objectives of the controls in DCP 1999. The answer to these questions would have been different in Appeal No. 10317 of 2006.

40 I therefore accept council’s submission that the garage and loft at 124 Paddington Street be deleted. Otherwise I am satisfied that the application warrants approval. However, prior to final orders being issued, the following directions are required to be satisfied.

1. The Applicant is to discontinue Appeal No 10283 of 2008 by 6 June 2008.

2. The Applicant is to serve by 11 June 2008 plans and elevations which show the works executed under Appeal No 10317 of 2006.

3. The Applicant is to serve by 11 June 2008 amended plans and elevations that incorporate the changes in Exhibit C and the deletion of the garage/loft at 124 Paddington Street, Paddington.

4. The Respondent is to serve amended conditions by 18 June 2008.

5. The parties are to file agreed plans and conditions by 20 June 2008.

The final orders will be issued in chambers.

___________________

Annelise Tuor
Commissioner of the Court
ljr