Lee v Woollahra Municipal Council

[2018] NSWLEC 1597

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lee v Woollahra Municipal Council [2018] NSWLEC 1597
Hearing dates:	15 November 2018
Date of orders:	20 November 2018
Decision date:	20 November 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) The applicant is granted leave to amend the application for development consent, by relying on the documentation in Exhibits A (architectural plans) and Exhibit B (landscape plans) and listed in condition A.3 of Annexure A. (2) The appeal is upheld. (3) Development Application No. 389/2017 for the demolition of an existing dwelling and construction of a new dwelling, pool and landscaping works at 404 Edgecliff Road, Woollahra, is approved, subject to the conditions of consent at Annexure A. (4) The exhibits, other than exhibits 1, B and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION: refusal of the application by the Local Planning Panel; no contentions raised by the respondent; contributory building in the Woollahra Heritage Conservation Area; demolition of existing dwelling house and construction of a new dwelling house, pool and landscaping works.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Land and Environment Court Practice Note Class 1 Development Appeals Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Penelope Lee (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant)   Solicitors: Harris Freidman Lawyers (Applicant) G Garrett, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/162921
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 389/2017 for the demolition of an existing dwelling and construction of a new dwelling, pool and landscaping works (the proposal) at 404 Edgecliff Road, Woollahra (the site) by Woollahra Council (the Council).

2. The applicant, by Notice of Motion filed on 13 November 2018, sought an order that leave be granted to the applicant to amend its development application by relying on amended plans and documents. The amendments to the application are listed in an attached schedule (Exhibit D) and can be summarised as follows:

• Change the roof from a gabled roof to a hipped roof and reduce the pitch to lower the ridge height of the roof by 1.09m;

• Setback from the south-eastern boundary increased by 400mm;

• Retention of existing fence and wall dividing the site and 400 and 402 Edgecliff Road;

• Retention of trees 11, 12, 13, 14 and pool equipment relocated;

• Transplant tree 21 (a group of Bangalow palms) close to the boundary of 398 Edgecliff Road and retain trees 22, 23, 24, 25, 26 and 27;

• Increase the setback of the garage wall to retain the existing wall including the vegetation along the northern boundary;

• Retention of existing Camellia situated on the boundary between 398 Edgecliff Road and the site;

• Replacement of 3 pleached Pyrus Calleryana “Bradford” trees along the boundary of the site and 400 Edgecliff Road with 3 Michelia Alba;

• Opaque glazing to windows noted as W29, 30, 31 and 32 and lower half of W28.

3. Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to amend the application for development consent and rely on the documentation in Exhibits B and C.

4. The Council filed a Statement of Facts (Exhibit 1) with no contentions.

The site and its context

5. The site is a battle-axe allotment located on the eastern side of Edgecliff Road, legally described as Lot 3 in DP 386978. The site has a total area of 1023.9m2.

6. The site contains a two storey dwelling and swimming pool.

Background and the proposal

7. The development application was lodged on 27 August 2017.

8. The proposal is to demolish the existing dwelling and construct a new two storey dwelling, pool and landscape works.

9. The application was determined by the Local Planning Panel as it was categorised as contentious development, because the application was the subject of 10 or more unique submissions by way of objection (Exhibit 2, f 34). The Development Application Assessment Report to the Local Planning Panel recommended the application be granted consent (Exhibit 2, f 34). The Local Planning Panel determined the application by refusing consent on 17 May 2018, stating the following (Exhibit 2, f 190):

“Irrespective of its construction being outside the Inter War period, the existing building makes a positive contribution the Heritage Conservation Area due to the scale relationship of its built form to landscape area, including its relationship to other surrounding contributory buildings. In this regard, the demolition of the existing building is not adequately justified.

The proposed infill building is considered to be excessive in bulk, scale and form and inappropriate in its siting and relationship to its landscape area and other contributory buildings. Additionally, the infill building makes a lesser contribution than the existing building to the significance of the Heritage Conservation Area.”

Planning framework

10. The site is zoned R3 Medium Density Residential pursuant to the Woollahra Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. The objectives of the R3 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

11. Relevantly, an aim of LEP 2014 at cl 1.2(f) is to conserve built and natural environmental heritage.

12. Clause 5.10(4) of LEP 2014 requires the consent authority to consider the effect of the proposed development on the heritage significance of the item or area concerned.

13. The site is identified as a contributory item in the Rosemont Precinct of the Woollahra Heritage Conservation Area (Woollahra HCA) under the Woollahra Development Control Plan 2015 (DCP 2015). The site is listed as “Inter-War house” at C2.7 Schedule of Contributory Items in DCP 2015.

14. C2.3.1 Rosemont Precinct of DCP 2015 relevantly includes the following:

“Significant characteristics

► A subdivision pattern developed from former estates made up by large, sometimes irregularly shaped, lots that respond to the hilly topography and Edgecliff Road.

► Remnant substantial houses orientated towards the harbour views.

► Landscape features of the large early estates such as ‘Rosemont’ in Rosemont Avenue, the terraces and sandstone retaining walls from ‘Eynesbury’ in Albert Street, the Kauri Pine from the grounds of ‘Quiraing’ at 2 Trelawney Street and the later subdivision of Quambi and ‘Hillside’.

► Streetscapes of mature street trees, including the avenue of plane trees on Rosemont Avenue and the figs and plane trees on Edgecliff Road and Ocean Street. Substantial sandstone retaining walls respond to the steep topography.

► The combination of substantial Victorian houses within landscaped ground, located beside large Victorian or Federation terraces or semi-detached houses and Inter-War period houses and residential flat buildings. Gardens often contain mature trees such as pines, planes and figs. Front fences and gates are designed in association with, and to complement, the buildings behind.

► The variety of its residential architecture, which includes:

- detached and semi-detached Victorian houses with external masonry walls of unpainted sandstone or painted stucco, often with decorative painted cement render mouldings. Roofs are steeply pitched and were generally originally clad in slate. Windows are vertically proportioned painted timber double-hung sashes. Porches or verandahs often had cast iron filigree detailing;

- detached and semi-detached Federation houses usually in the Queen Anne style. Walls were originally unpainted brickwork. Open verandahs have turned and fretted timber work. Roofs are steeply pitched with tall chimneys and clad with slate or Marseilles pattern terracotta roof tiles. Windows are casements or double hung sashes with multi-paned tops lights;

- Inter-War houses in an eclectic variety of styles typical of the period, including Spanish Mission, Mediterranean, Georgian Revival and Old English, usually with painted stucco walls and Roman, Spanish or Marseilles pattern tiles. The houses sometimes combine detailing from a number of these styles; and

- Inter-War flat buildings usually in face brick with terracotta tiled roofs. The styles of the flat buildings often demonstrate the influence of the Inter-War domestic styles for detached houses. Skyscraper Gothic styled apartments are also present.

► Garages and carports that are generally located within the property at some distance from the front boundary or accessible from a side street.

► Substantial Victorian and Federation institutional and public buildings including the former Woollahra Council Chambers [Goethe Institute], Woollahra Public School and Fire Station, All Saints Anglican Church, St Columba Uniting Church, Little Sisters Convent and Wolper Hospital.

► Chiswick Gardens, a municipal garden established in 1938.

Objectives

O1 To conserve the curtilages of the former estates and their landscaped garden settings, including outbuildings and fences.

O2 To conserve the institutional public buildings and mature street trees.

O3 To encourage contemporary infill development to respond appropriately to the Victorian, Federation and Inter-War housing which dominate the precinct.

O4 To encourage alterations and additions to existing buildings which retain and enhance the character of the building and the streetscape.”

15. C2.4.12 Infill development of DCP 2015 relevantly includes objectives and controls for infill development within an existing urban context.

No public submissions

16. No objectors gave evidence at the hearing. I accept the agreed submission of the parties and I am satisfied that the requirements of the Land and Environment Court Practice Note Class 1 Development Appeals in relation to an application for final orders by consent of parties at [98]-[99] have been complied with, as follows:

“98. When there is agreement prior to the commencement of a hearing of a development appeal involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.”

17. The objectors were notified on 6 August 2018 that the matter had been listed for hearing on 15 November 2018 and that Council did not propose to raise any contentions so that the matter would be dealt with by way of consent orders. A ‘residents briefing session’ was held on 24 August 2018 at Council’s Chambers with the objective of taking the objectors through the process of the case management of the proceedings.

18. Two Notices of Motion for joinder of parties were filed on 31 August 2018 and 10 October 2018 respectively and were later withdrawn in response to discussions between the applicant and those objectors which resulted in an amended proposal.

19. Five objections were included in the Council’s bundle (Exhibit 2, ff 224-230). The issues raised in the letters can be summarised as:

• The rear and southern setbacks have been reduced when compared to the existing dwelling;

• The scale and bulk of the proposal is greater than the existing dwelling;

• Significant trees are proposed to be removed;

• The proposal is not in keeping with the area of Woollahra;

• The deep soil landscaped area is incorrect; and

• The swimming pool should not be located in the front of the dwelling.

Consideration

20. GML Heritage Consultants prepared a Demolition Report and Heritage Impact Statement (HIS) on behalf of the applicant (Exhibit E, tabs 6 and 7).

21. The Demolition Report and HIS conclude that the demolition of the existing dwelling is acceptable because the “existing dwelling was erroneously identified as an interwar house with contributory values to the Rosemont Precinct” and it is “an unremarkable example of 1950s suburban architecture in Sydney” and it “makes a negligible contribution to the streetscape given its battle-axe location”. This opinion is corroborated by the Council’s heritage officer, Ms Flavia Scardamaglia, who noted that the dwelling was designed by the architectural firm of Morrow and Gordon in 1953 (BA 224/1953) and is “outside the key period of significance for Woollahra and the Rosemont precinct”. Ms Scardamaglia also noted that the existing dwelling “has been subject to a number of modifications, though not affecting its appearance” (Exhibit 2, f 195).

22. Both the GML Demolition Report and Ms Scardamaglia’s referral determined that the existing dwelling does not reach the threshold for local heritage significance under the NSW heritage assessment criteria (“Assessing Heritage Significance” NSW Heritage Office publication 2001) and justified the demolition of the building on this basis. The Heritage Assessment Criteria is designed to test whether or not an item meets the threshold for listing as an item of local or State heritage significance; it is not designed to test the contribution a building or place makes to the collective significance of a heritage conservation area, because it tests the item in isolation of its context. A building or place identified as being contributory to a heritage conservation area, but not listed as a local heritage item, need not meet the threshold for listing as a local heritage item to contribute to the historic and aesthetic values of the conservation area and its collective heritage significance. The demolition of a contributory building is not justified by an assessment that it does not meet the threshold for listing as an item of local heritage.

23. I do not accept that the existing dwelling is non-contributory to the Woollahra HCA on the bases of its date of construction shortly after WWII or because it is not widely visible from the public domain. The so called “key period” of significance for Woollahra and Rosemont Precinct is broad, ranging across a century from mid-19th century to mid-20th century, and so buildings should not be discounted as being non-contributory to the Woollahra HCA solely on the basis that they post-date WWII. Nonetheless, I do accept that the building is incorrectly identified at C2.7 Schedule of Contributory Items in the Woollahra DCP 2015 as an ‘Inter-War house’. The heritage significance of the Rosemont Precinct as described in the ‘significant characteristics’ and ‘variety of its residential architecture’ in DCP 2015 is inclusive of the established character of the Rosemont Precinct and does not confine that significance only to a specific and distinct time period. Buildings that are on battle-axe allotments may contribute to the collective heritage significance of a heritage conservation area because they are part of the fabric and history of the development of an area, whether or not they are seen from the public domain. Clause 5.10(4) of LEP 2014 requires consideration of the effect of the proposal on the heritage significance of the area. Eroding the heritage significance of contributory buildings and heritage items results in the cumulative loss of heritage values and impacts on the setting of contributory buildings and heritage items; whether or not those unsympathetic changes can be viewed from the public domain or from another contributory building or heritage item in the vicinity of the site.

24. Architects David Thomas Morrow (1871-1935) and his nephew, Percy James Gordon (1892-1992) were partners in the architectural firm Morrow and Gordon (formerly Morrow and de Putron; and Morrow, de Putron and Gordon prior to the departure of de Putron in 1925). The architectural firm is recognised for their notable buildings, including Babworth House in Darling Point, the Grace Building in Sydney and The Oaks Hotel in Neutral Bay. The existing dwelling was designed and constructed c1953, during the period following the retirement and death of D.T. Morrow, when P. J. Gordon was the senior partner of the firm. Despite the notable provenance of the existing dwelling, I accept the agreed evidence that the existing dwelling is an unremarkable example of 1950s suburban architecture and of the body of work of the architectural firm Morrow and Gordon (Exhibit 2, f 196).

25. I accept that the proposal, as amended in Exhibits B and C, complies with and is significantly less than the height of buildings development standard and complies with the relevant objectives and controls in DCP 2015 (Statement of Environmental Effects Exhibit E, tab 5). The amended proposal has addressed the issues raised by the objectors’ submissions, by retaining additional mature trees on the site and reducing the volume of the building envelope.

26. I accept the conclusion of the HIS that the proposal is sympathetic to the established character of the Rosemont Precinct.

27. Having considered all of the evidence before me, I am satisfied that it is appropriate to grant consent to the application.

Orders

28. The orders of the Court are:

1. The applicant is granted leave to amend the application for development consent, by relying on the documentation in Exhibits A (architectural plans) and Exhibit B (landscape plans) and listed in condition A.3 of Annexure A.

2. The appeal is upheld.

3. Development Application No. 389/2017 for the demolition of an existing dwelling and construction of a new dwelling, pool and landscaping works at 404 Edgecliff Road, Woollahra, is approved, subject to the conditions of consent at Annexure A.

4. The exhibits, other than exhibits 1, B and C, are returned.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (677 KB, pdf)

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Decision last updated: 20 November 2018