Mateo v Sydney City Council

[2004] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION:

Mateo v Sydney City Council [2004] NSWLEC 198

PARTIES:

APPLICANT
Elizabeth Mateo

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10030 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Visual impact on heritage conservation area
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Development Control Plan
.

CASES CITED:

DATES OF HEARING:

27 April 2004

EX TEMPORE
JUDGMENT DATE :

04/27/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Strati, solicitor
ASK Lawyers

RESPONDENT
Mr C Leggatt, barrister
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Elizabeth Mateo

Applicant

Respondent

Judgment

1. This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act concerning a refusal by the Council of the City of Sydney (the council) for approval to construct a covered walkway and a new street frontage fence to 115 St. Johns Road, Forest Lodge.

2. The site is located within a heritage conservation area identified in the Leichhardt Development Control Plan (the DCP) is being part of the Hereford Distinctive Neighbourhood. The site falls within the area that has recently being transferred to the council and, as a consequence, it is the council’s refusal (pursuant to the transitional provisions which retain the application of the Leichhardt planning instruments with respect to the site) which is the subject of this appeal.

3. As a consequence of the consent, by the council, to the amendment of number of aspects to the plans, I am satisfied that I should treat my jurisdiction for the matter as effectively being an appeal against a proposed condition which would require the deletion of the proposed covered walkway. In that regard, I indicate that I propose, formally, to uphold the appeal on the general issues so that at least the applicant will obtain a consent to the agreed amendments to the front fence.

4. In company of the parties and the expert witnesses, I have had the opportunity of inspecting the appearance of the site from St John’s Road - both to the east and the west and from both sides of the street. In doing so, I have endeavoured to envisage that view as being undertaken in the absence of the walkway structure which is currently on the site.

5. The covered walkway which is currently erected on the site has been erected without consent and, as a consequence of the agreed amendments to the plans, would be reconstructed in a form (if approved) that involved separate footings and a setback of 1.9 m from the street. The totality of the present structure would be lowered by some 300 mm. A disconnection of it, in a visual sense, would be created from the verandah structure by the removal of the elements of roofing that are not in the same plane as the existing sides to the walkway.

6. Envisaging the site without the awning; contemplating the streetscape in that fashion and then envisaging the present structure (although lowered and set back) in my assessment makes it a comparatively simple issue to deal with this appeal.

7. The fundamental question is whether the proposed structure compared to the absence of the proposed structure would constitute an acceptable impact in terms of the desired future character, set out on a page A 154 of the DCP Hereford Suburb profile, which would allow for contemporary redevelopment where it is complimentary to the existing heritage streetscape character of the neighbourhood and where the building elements would preserve consistency in built form by materials characteristic of the Victorian Italianate style of buildings (which it is agreed is the general style of building not only of the subject property but of the mirror reversed image twin building to the south).

8. I am satisfied that they would not.

9. I have concluded that I should accept the evidence of Mr Wilson’s on this point that the impact would be unacceptable although I do note that Mr Patch concluded that it was acceptable.

10. I accept Mr Leggat’s submission in this regard that Mr Patch's evidence, in truth, acknowledges that there is a balancing act involved when considering the fence and walkway in totality - with the implicit acknowledgment that, although the proposed changes to the fence are positive, there is some negative impact from the proposed walkway.

11. I am not satisfied that the balance is that the totality is satisfactory. I am, on the contrary, satisfied that, envisaging the building without the walkway element and then viewing with it, that somebody driving along the street on day one seeing the building in its form without the walkway and then driving along the street on day two and seeing the building with its walkway would notice (particularly when travelling from east to west along St Johns Road) a dramatic and incursive alteration to the streetscape that is not consistent, in any fashion, with the design of the present row of three Italianate buildings. I do note that each of those buildings presently has some unsympathetic modifications but each of those modifications is not as dramatically intrusive nor as enclosing and forward on the site as would be the proposed walkway.

12. I have specifically considered the issue of the entirely unsympathetic carport two dwellings to the west and note that, although it is unsympathetic when viewed from close proximity, it is a horizontal structure on a number of thin supports. It does not have the immediate and what might be regarded as "in your face" appreciation as would the proposed structure when driving along St Johns Road viewing the streetscape.

13. As a result, the orders that I will issue in this matter, when the parties have filed with the Court agreed settled conditions and amended plans, will be that:

1. the appeal against refusal is upheld; but
2. the appeal against the imposition of a condition requiring the deletion of the covered walkway is dismissed; and
3. the application will be approved in terms of the amended plans and conditions to be filed; and
4. the exhibits, with the exception of Exhibit A, may be returned.

Commissioner of the Court