Mellor Gray Architects v Hunters Hill Council
[2008] NSWLEC 1403
•4 November 2008
Land and Environment Court
of New South Wales
CITATION: Mellor Gray Architects v Hunters Hill Council [2008] NSWLEC 1403 PARTIES: APPLICANT
RESPONDENT
Mellor Gray Architects
Hunters Hill CouncilFILE NUMBER(S): 10248 of 2008 CORAM: Tuor C KEY ISSUES: Development Application :- alterations and additions to an existing restaurant and addition of a second storey dwelling
whether an appropriate addition to an existing building in a conservation area
provision of on site parking
garden area and SEPP 1 objection
extension of trading hoursLEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hunters Hill Local Environmental Plan No 1
State Environmental Planning Policy No 1DATES OF HEARING: 18, 19 June 2008 and 9 September 2008
DATE OF JUDGMENT:
4 November 2008LEGAL REPRESENTATIVES: APPLICANT
Mr C. McEwen, SC
Instructed by C. Penner
of Gadens LawyersRESPONDENT
Mr J. Cole, solicitor
of HWL Ebsworth Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTuor C
4 November 2008
JUDGMENT10248 of 2008 Mellor Gray Architects v Hunters Hill Council
1 This is an appeal against the deemed refusal by Hunters Hill Council (the council) of a development application (07-1010) under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to the existing restaurant and addition of a second storey dwelling at 103 Woolwich Road, Woolwich (the site).
2 The key issue between the parties is whether the proposal was an appropriate addition to a contributory building in a conservation area.
The site and its locality
3 The site is located on the southern side of Woolwich Road and is rectangular in shape with an area of 390.5 sq m. It has a single storey building, which is used as a restaurant and caretakers residence.
4 To the east and south, the site adjoins a public reserve. To the west it adjoins a two storey house (101 Woolwich Road) which fronts Franki Road. To the north, on the opposite side of Woolwich Road, is the Woolwich Pier Hotel and a number of retail and commercial buildings.
Planning framework
5 The site is zoned 2(a2) under Hunters Hill Local Environmental Plan No 1 (the LEP). Restaurants are prohibited within the zone. The parties agreed that the restaurant could rely on the existing use rights provisions of ss106 -109B of the Act. The provisions of the planning controls apply only to the extent that they do not derogate from the existing use rights provisions of the Act. The residence is permissible within the zone and the provisions of the planning controls apply to this part of the development.
6 The site is located within a Heritage Conservation Area and is in the vicinity of a number of heritage items listed under the LEP. Clauses 19 and 19A of the LEP require an assessment of the impact on the heritage significance of the items in the vicinity and the conservation area. Clause 19B provides that the Conservation Advisory Panel (the Panel) may be consulted. The proposal was referred to the Panel on a number of occasions and amendments were made in response to the Panels concerns. The amended plans for which the applicant is seeking approval were not referred.
7 Clause 16A(2) requires land within a 2(a2) zone to provide a minimum of 50% of the site as garden area. The proposal does not meet this control and the applicant has submitted an objection under State Environmental Planning Policy No 1 (SEPP 1).
8 The site is located within a Foreshore Scenic Protection Area and cl 18A provides matters for consideration.
9 Hunters Hill Development Control Plan No 15 – Residential Development (DCP 15), Hunters Hill Development Control Plan No 21 – Commercial Development (DCP 21) and Hunters Hill Development Control Plan No 18 – Planning for Waste Minimisation and Management (DCP 18) are relevant to the residential component to the extent that they do not derogate from the existing use rights enjoyed by the restaurant use.
Background and evidence
10 The existing building on the site appears to have been constructed in three main stages. The first stage which fronts Woolwich Road was built in about 1895 and was used as a shop (former shop) and is now used as part of the restaurant. The second stage is also used as part of the restaurant. The third stage at the rear contains the manager’s flat.
11 There have been a number of development approvals on the site; of most relevance is DA084/97 which council approved on 17 December 1997 for a restaurant (the 1997 consent). The conditions of consent include a limitation on trading hours (condition 1), a requirement for a monetary contribution of $120,000 in lieu of the provision of 8 car spaces (condition 8) and a limitation to no more than 60 persons (condition 9). The approved plans show an existing manger’s flat in the rear of the building. The applicant relies on the 1997 consent to establish existing use rights.
12 The application was lodged on 6 February 2007 and was notified. A number of objections were received. The application originally proposed demolition of the existing building on the site, except part of the western wall of the former shop. The application was amended during the assessment process to retain more of the former shop in response to the Panel’s advice and community concerns. At the time of the appeal the council had not determined the application.
13 The application before the Court at the commencement of the hearing retained part of the former shop and proposed a restaurant for 60 people on ground level and a three bedroom residence on the first floor which extended partly over the former shop (the original proposal).
14 The appeal commenced on site on 18 June 2008 and the Court heard evidence from resident objectors who were principally concerned that the original proposal did not retain enough of the former shop and that the addition was inappropriate as it would dominate the existing building, is highly visible from the reserve and would be out of character with the conservation area.
15 The residents considered the original proposal would increase the restaurant area and therefore the number of people, traffic and demand for parking. The residents stated that a restaurant was not permissible within the residential zone and therefore it should not be expanded.
16 Mr and Mrs Metcalfe, the adjoining owners at 101 Woolwich Road raised concerns about the extent of view loss and noise.
17 The Court heard expert evidence on site and in Court from Mr S. Davies, for the applicant and Mr G. Patch, for the council on heritage and from Mr G. Shiels, for the applicant and Mr M. Adamson, for the council, on planning and traffic matters. Mr N Gross, the parties’ single expert provided evidence on noise and recommended changes to the proposal.
18 During the hearing, the experts agreed to changes that would address concerns relating to view loss, heritage, noise and waste storage. Mr McEwen, for the applicant, sought leave to rely on amended plans which would incorporate the amendments detailed in an agreed schedule prepared by the experts (the amended plans).
19 The hearing resumed on 9 September 2008. The Court heard further evidence from Mr P Jenkyn, a local resident, who considered the amended plans to be an improvement but still raised concerns about the “overlap” of the new building with the old and the lack of parking. Concerns about the junction between the old and the new were shared by Mr T Coote, the President of the Hunters Hill Trust who also raised issue with the materials of the new building, particularly the stone wall facing the reserve. Mr and Mrs Metcalfe concerns were limited to noise, asbestos removal and limitations on the use of the second floor to residential. These matters have been addressed by conditions.
Issues
20 Despite the general agreement of the experts, Mr Cole, for the council, maintained concerns about the retention and additions to the existing building, the provision of parking and the extension to the trading hours. Council proposed conditions to address these concerns, including a deferred commencement condition which required the retention of the former shop (9.2m from the street frontage) (condition 1(d)) and the resultant reduction in size of the upper floor of the dwelling (condition 1(e)). The applicant opposed the imposition of these conditions. The conditions subsequently filed with the Court by the council on 11 September 2008 no longer pressed deferred commencement conditions 1(d) and (e).
21 Mr Patch and Mr Davies raised no objection to the demolition of the two later stages of the building. They agreed that:
- The former shop is a survivor of the retail/commercial function of the Woolwich village.
- Although it is not a heritage item the former shop retains a contributory function by being able to represent its original function.
A legible length of the original shop should be retained.
22 Mr Patch raised concerns about the original proposal before the Court but considered the amended plans to be a “pragmatic compromise” which retained sufficient of the former shop to make it legible while recognising the constraints of retaining views from the adjoining house and providing three bedrooms to provide reasonable accommodation for the upstairs dwelling. He stated that the proposal retained two thirds of the ridge length of the former shop and this was a “vast improvement” on the original scheme.
23 Mr Adamson also considered the proposal, as amended to be reasonable and a significant improvement to what was previously proposed. Although he still raised concerns about the intensity of the use of the site as both a restaurant and dwelling.
24 Both Mr Davies and Mr Shiels considered the original proposal to be acceptable. Mr Davies considered the length of the former shop to be retained in the amended plans to be sufficient to retain the form of the building and that the proposal was an acceptable resolution of new and old. Further he did not consider the roof form of the former shop to be of such significance that its entire length needed to be retained.
25 Mr Shiels stated that the application should be considered in the context of the whole of the building on the site, which has been constructed over time and is of a form and architecture that does not contribute to the adjoining reserve, the conservation area or the former shop. All the experts had agreed on 19 June 2008 as to the extent of the former shop to be included in the amended plans, which in his opinion provided a balance between a contemporary building and the retention of an existing building.
26 The experts agreed that more of the original shop front should be retained than proposed in the amended plans and proposed a condition to this affect which the applicant has accepted.
Findings
27 I acknowledge the concerns of the residents in relation to the extent of the former shop to be retained and the junction between the new and the old. A better resolution could have been achieved if the upper level did not extend over the former shop and if a transition between the new and the old were provided. However, this is not the application before the Court. The applicant has responded to the agreed position of the experts as to the changes required in amended plans. This agreement included the extent of the former shop to be retained.
28 While I would prefer if more of the shop were retained I accept the opinion of the experts that the proposal is acceptable and that it is an appropriate addition to the former shop given the constraints on the site. In particular the constraint of maintaining the views from the adjoining property at 101 Woolwich Road. This constraint limits the extent to the south that the upper floor can extend. The experts, in balancing this constraint against retaining more of the former shop, gave greater weight to maintaining views.
29 There may be further changes that could be made to the amended plans to reduce the upper level and its extension over the former shop, however none have not been suggested by the experts. Further amendments would require a redesign of the upper floor if any meaningful change it be achieved. The scope for further amendments is limited due to the applicant’s requirement for three bedrooms, which is not an unreasonable expectation in this area, even if combined with a restaurant.
30 In balancing these competing objectives, I accept that the amended proposal is acceptable addition to the former shop and will not adversely impact on the significance of the conservation area.
Parking
31 No parking is provided on site for the existing 60 seat restaurant and manager’s flat. The 1997 consent required a contribution in lieu of 8 parking spaces which has been paid and there are 24 unrestricted parking is available in Franki Avenue and 20 spaces in Clark Road as well as restricted spaces in the area
32 Mr Adamson considered that there was a shortage of parking in the area and that as the proposal was a redevelopment of the site it should comply with the parking requirements in DCP 15 and DCP 21.
33 Mr Sheils considered that as the number of seats in the restaurant is limited to 60 there is no increase in intensity of the use or demand for parking. He agreed that the existing manager’s residence generated a demand for one space whereas the new three bedroom residence required two spaces. There is therefore a shortfall of one space. However, Mr Sheils considered this to be acceptable given the availability of unrestricted on street parking and the constraints imposed on the site by the retention of part of the former shop within a conservation area. He accepted that parking at certain times would be at a premium particularly resulting from the demand generated by the Woolwich Pier Hotel but he stated that this is the current situation and that the proposal did not intensify the use or increase demand for parking beyond the current situation.
Findings
34 I accept Mr Sheil’s opinion. The proposal does not increase the number of seats in the restaurant and therefore does not increase the demand for parking other than the one space for the dwelling. The proposal is not a redevelopment of the site as it retains part of the former shop. This places constraints on the provision of parking on site. I accept that at certain times there is a shortfall of parking in the area however, the proposal will not exacerbate this situation. The proposal does not warrant refusal because of the shortfall of one residential car space given the availability of on street parking for the majority of the time.
35 A total redevelopment of the site or an increase in the number of seats would require an assessment of the number of spaces required to be provided on site.
Garden area
36 Mr Shiels considered the objective of cl 16(a) is to provide appropriate garden area for dwelling houses. The existing restaurant and manager’s flat provides 88.9sqm of garden area, which is about 23% of the site. The proposal will provide an increase in the garden area to 105.8sqm, which is about 27%. Mr Shiels considered the proposal met the objectives of the standard given the increase in area, the size and functionality of the garden area and that the site adjoins a reserve. Mr Adamson agreed that given the circumstances of this site there would be little benefit in providing more garden area. Having reviewed the SEPP 1 objection I accept that the objection is well founded and that compliance with the standard is unreasonable and unnecessary.
37 A condition has been imposed to restrict the use of the garden area by restaurant patrons. This ensures that it is available for use by occupants of the dwelling and that no adverse noise impact results from its use.
38 No landscape plan accompanies the amended application. A condition has been included that requires a landscape plan to be submitted for approval.
39 The applicant is seeking to extend the trading hours approved in Condition 1 of the 1997 consent which provides:
Trading hours being limited to:
Tuesday – Friday 9am – 10pm
Saturday 9am – 10pm
Sunday and public holidays: 9am – 9pm
- All customers are to leave the premises no later than 30 minutes after the above times and all staff are to vacate the premises no later than one and half hours after close of trading.
- No meals are to be served outside these hours.
40 The applicant is seeking to extend these hours by
The hours of operation are to be restricted to:
Monday to Saturday (9am-11pm)
Sunday and Public Holidays (9am-11pm)
with staff to leave the premises within half hour following.
41 Mr Gross considered that the increased hours are not likely to be a problem given the commercial context but recommended that:
Trading until 11pm be approved only on a trial period for 1 year with a requirement to undertake monitoring on at least three occasions, to confirm operations can comply with the LAB criteria. It may be sensible to allow this trial on Fridays and Saturdays only.
42 The applicant does no consider a trial period to be necessary as the trading hours are only being extended by 30 minutes on Mondays to Saturdays as the 1997 consent allowed patrons to remain for 30 minutes after closing time (until 10.30pm). Under the extended hours patrons would leave by 11pm with only staff remaining for a further half an hour. Further the applicant considers any noise generated by the restaurant is insignificant in comparison to that generated by the Woolwich Pier Hotel. However it will accept a trial period.
43 I accept Mr Gross’s recommendation and have included a condition, which requires a one year trial period with independent monitoring on three occasions. I have permitted the extension of hours to 11pm requested by the applicant, as it is appropriate that the operation of the restaurant on both weeknights and weekends be subject to a trial period. At the conclusion of the trial period the trading hours will revert to those approved in the 1997 consent unless a further application for extended hours has been lodged.
44 The council conditions filed on 11 September 2008 include deferred commencement conditions 1(a), 1(b), 1(c), 1(d) and 1(e) which are not agreed to by the applicant:
45 I understand that the parties agreed in the hearing that the requirements in these deferred commencement conditions had been incorporated into the amended plans and that they are not necessary. I have therefore deleted them from the consent.
Order
46 The orders of the Court are:
1. The appeal is upheld
2. The development application (07-1010) for alterations and additions to the existing restaurant and addition of a second storey dwelling at 103 Woolwich Road, Woolwich, is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibit F, are returned
___________________
- Annelise Tuor
Commissioner of the Court
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