Morad v Inner West Council

[2021] NSWLEC 1570

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morad v Inner West Council [2021] NSWLEC 1570

Hearing dates:

21 September 2021

Date of orders:

28 September 2021

Decision date:

28 September 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.
(2) Development Application No. 2021/0208 for alterations to the existing dwelling to provide a driveway and new garage for a single car parking space within the existing dwelling, at 14 Clifton Street, Balmain East, is refused.
(3) The exhibits, other than Exhibits 1, A, B and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – local heritage item – effect on heritage significance of item – convert an existing room into a single garage

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 cll 3, 25

Cases Cited:

Morad v Inner West Council [2020] NSWLEC 1242

Texts Cited:

Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Mohammad Morad (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/126922

Publication restriction:

Nil

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. 2021/0208 for alterations to the existing dwelling to provide a driveway and new garage for a single car parking space (the proposal) at 14 Clifton Street, Balmain East (the site) by the Inner West Council (the Council).

2. The appeal was listed for conciliation on 21 September 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). At the commencement of the conciliation conference, the parties advised that they were unable to reach agreement on the heritage contention and the conciliation conference was terminated, and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. The hearing was conducted via MS Teams.

Issues

4. The Council contended that the proposal will have an unacceptable impact on the heritage significance of the heritage item, the heritage conservation area and heritage items in the vicinity of the site, because the proposal is an unsympathetic alteration to the building and requires modification of surviving original fabric. The proposal will result in the loss of one or more of the principal rooms created as part of the 1880s addition.

The site and its context

5. The site is at the eastern end of Clifton Street, at the bottom of the hill, with a frontage to the harbour. The site is bounded to the north-west by Clifton Lane.

6. The site has an area of 818.3m².

7. The dwelling is a two storey building consisting of an earlier stone structure, c 1845, at ground level and an 1882 first floor addition of rendered brickwork with return verandah. The dwelling is known as “Drummond Lea”. The original slate tiled hipped roof has been retiled with terracotta roof tiles.

8. The site includes a boat house and slipway.

Background and the proposal

9. Alterations and additions to the existing dwelling and boatshed, new swimming pool and associated works including conservation works and tree removal, were approved on 4 June 2020 and are currently under construction (Morad v Inner West Council [2020] NSWLEC 1242).

10. The proposal is to modify the front room and bay window to create a garage door opening and garage for a single car. The garage door opening is to be created by dismantling the bay window to a front room of the 1882 addition to the dwelling and constructing a steel framed bay window, clad to look the same as the existing when viewed internally and externally. The bay window will be able to be hydraulically lowered below ground into a pit in order to provide car access across a platform to access the existing room. A concrete slab to support the vehicle will be built over the existing floor of the front room, supported on new footings that will be separate to the structure of the dwelling. New steel lintels will be inserted above the new opening, and the operating mechanism will be located in the roof space (Exs B and C).

Planning framework

11. The site is zoned R1 General Residential pursuant to the Leichhardt Local Environmental Plan 2013 (LEP 2013). The proposal is permissible with consent. The objectives of the R1 zone are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

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

• To improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

12. The site is listed as a local heritage item (item number 363, Sch 5 to LEP 2013) and is described as, “House, including interiors”. The site is within the Balmain Heritage Conservation Area. Clause 5.10(4) requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the item or area concerned.

13. There is a draft LEP, Inner West Local Environmental Plan 2020 (draft LEP), which has been exhibited and not yet made. The draft LEP includes the same relevant provisions, in the same terms, as LEP 2013.

14. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site at cl 3. The matters to be taken into consideration in relation to the maintenance, protection, and enhancement of the scenic quality of foreshores and waterways are listed under cl 25.

15. Leichhardt Development Control Plan 2013 (DCP 2013) applies to the site at Section 1, A1.3.

16. The objectives and controls for alterations and additions, at C1.3 of DCP 2013, include the following relevant objectives and controls:

“O1 To ensure that development:

…

b. where an alteration or addition is visible from the public domain it should appear as a sympathetic addition to the existing building;

c. makes a positive contribution to the desired future character of the streetscape and any heritage values associated with it;

…

h. retains existing fabric wherever possible and maintains and repairs, where necessary, rather than replaces the fabric.

…

C4 Where buildings contain original form or detail which has been compromised, the integrity of the original form and detail should be enhanced, rather than being justification for further compromise.

…

C7 Alterations and/or additions to the front of an existing dwelling must ensure that important elements of the original character of the building and its setting are retained, restored or reconstructed, where it contributes to the desired future character, including but not limited to:

a. balconies and verandahs;

b. front gardens and landscaping;

c. fences and walls;

d. fenestration;

e. roof forms.”

17. The objectives and controls for heritage conservation areas and heritage items, at C1.4 of DCP 2013, include the following relevant objectives and controls:

“O1 Development:

a. does not represent an unsympathetic alteration or addition to a building;

b. encourages the protection, restoration, continued use and viability of buildings for their original purpose;

…

d. is compatible with the setting or relationship of the building with the Heritage Conservation Area in terms of scale, form, roof form, materials, detailing and colour of the building and conforms with the Burra Charter;

e. conserves and enhances the fabric and detail of a building that contributes to the cultural significance of the building in its setting;

…

h. protects and enhances views of the existing building from the public domain;

…

C2 The fabric of an existing building is to be the subject of appropriate conservation practices including:

a. retention of original detail and finishes such as:

i. original face brick which should not be painted over or rendered;

ii. original decorative joinery and iron work which is not to be removed;

b. conservation of original elements;

c. reconstruction or restoration of original elements where deemed appropriate;

d. retention of the original cladding material of original roofs where viable;

e. consideration of suitable replacement materials should be based on original material, and where a property is part of a group or row, replacement materials should have regard to the integrity of the group.

C3 Development of dwellings within Heritage Conservation Areas must:

a. not include the demolition of the internal walls and roof form, including any existing chimneys, of the front two rooms of the dwelling;

b. retain the major form, scale and materials of the existing structure as described in (a);”

18. The site is within the Balmain East Distinctive Neighbourhood, identified by C2.2.2.2 of DCP 2015. Control 8 of Desired Future Character states that all development is to be sympathetic to the historic and conservation values of the neighbourhood.

19. The objectives and controls for residential provisions, in Section 3 at C3.1 of DCP 2013, include the following relevant objectives and controls:

“O3 To ensure that alterations, additions to residential buildings and new residential development are compatible with the established setting and character of the suburb and neighbourhood and compatible with the desired future character and heritage significance of the place and its setting.

…

C1 Residential development is not to have an adverse effect on:

a. the amenity, setting or cultural significance of the place, including the portion of the existing building to be retained; and

b. the relationship of any Heritage Item or Heritage Conservation Area to its place, setting and cultural significance.

C2 Additions to an existing building are generally:

a. located to the rear or the side of the existing building when viewed from the principal street frontage; and

b. subservient to the form of the existing building; and

c. maintain the form, fenestration, roof forms and chimneys of the existing building when viewed from the principal street frontage; and

d. of a design which is compatible with but does not compete with the architectural character of the existing building or the Building Typologies; and

e. of a scale, proportion (including proportion of doors and openings) and material which is compatible with the existing building.”

Public submissions

20. Two objectors gave evidence. Their concerns can be summarised as:

• The proposal will result in the loss of an on-street parking space.

• The proposal is contrary to the local heritage listing of the dwelling. The applicant bought the property knowing that it was a local heritage item. The proposal offends the principles of protecting heritage and makes a mockery of the local heritage listing.

• The property is featured as part of the ‘Tom Uren trail’ through Balmain.

21. The parties agreed that the proposal does not result in the loss of an on-street parking space.

Expert evidence

22. The applicant relied on the expert evidence of Dr Anne Warr (heritage), Bernard Lo (traffic) and David Romanous (stormwater).

23. The Council relied on the expert evidence of Sinclair Croft (heritage) and Joe Bertacco (traffic and stormwater).

24. The heritage experts prepared a joint report (Ex 3) and gave oral evidence. The traffic and stormwater experts prepared joint reports (Exs 4 and 5).

Consideration

25. I accept Dr Warr’s evidence that the orientation and access to the property for much of its early history was to and from the harbour, and the least significant façade of the property is the street front elevation. I accept Dr Warr’s opinion that the relationship between the Italianate villa portion of the dwelling, and Clifton Street, has been altered and the setting of the dwelling, when viewed from the street, is compromised and has been degraded by road works and drainage.

26. I accept Dr Warr’s evidence that the condition of the front room of the dwelling where the garage is proposed to be located has very little heritage fabric remaining, internally and externally, based on her ‘Level of significance plan’ reproduced in the joint report (Ex 3). I accept her evidence that no “heritage fabric” would be affected by the proposal, as the existing fabric, including timber flooring, framing, ceiling, cornices, skirtings and wall finishes, are all non-significant recent interventions which involved removal of the original fabric.

27. The applicant submitted that the proposal is a “contemporary adaptation” (using the meaning of adaptation as defined by the Burra Charter at article 1.9) of the Victorian Italianate façade of the dwelling, which does not impact on significant fabric.

28. The heritage significance of an item is not confined to original fabric and its degree of intactness. The significance of the item is described in Sch 5 to LEP 2013 as the house, including interiors. Inevitably, changes have been made and continue to be made to original fabric. The purpose of the local heritage listing is to manage that process, by requiring the consent authority to consider the effect of development on the heritage significance of the item, before granting consent. Unsympathetic alterations that impact on areas of the item that have been previously been altered still undermines the heritage significance of the whole.

29. I do not accept that the proposal is akin to a contemporary insertion, such as a new kitchen or a lift, in a heritage building. The proposal, to convert the front principal room to a garage by dismantling and constructing a garage door to look like the existing bay window when closed, fundamentally undermines the integrity of the dwelling. If the insertion of a garage into the 1882 Italianate villa portion of the dwelling was an acceptable and sympathetic addition, it would not be necessary to disguise the garage door as the existing decorative bay window with double hung windows and closed shutters, to conceal the car within.

30. I accept Mr Croft’s evidence that inserting a garage within the main building envelope of the heritage item is contrary to the intended use of the rooms, and effectively results in the loss of one of the principal habitable rooms constructed as part of the 1882 addition.

31. I do not accept that when the garage door is in a closed position, the west façade will appear as a reconstructed Victorian Italianate façade, because the cross-over and short driveway, the proposed ramp, and the gap between the bay window and the surrounding fabric, are all cues to the conversion of the front room to a garage.

32. The proposal seeks to overcome the problem of there being no vehicular access to this waterfront property, because the only street access to the property is in the location of the 1882 addition to the original cottage. This is a circumstance of the era of development, like much of Balmain, and the particular opportunities and constraints of this heritage listed property.

Conclusion

33. The proposal would diminish the heritage significance of the local heritage item.

34. The Council’s contention that the proposal would have an unacceptable impact on the heritage significance of the heritage item and the heritage conservation area because the proposal is an unsympathetic alteration to the building, is made out by the evidence. The proposal is not compatible with the established setting and character of East Balmain, or the desired future character and heritage significance of the place.

Orders

35. The Court notes:

1. That Inner West Council as the relevant consent authority agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application No. 2021/0208.

2. That Inner West Council lodged the amended development application on the NSW planning portal on 21 September 2021.

3. The applicant filed the amended development application with the Court on 21 September 2021.

36. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 2021/0208 for alterations to the existing dwelling to provide a driveway and new garage for a single car parking space within the existing dwelling, at 14 Clifton Street, Balmain East, is refused.

3. The exhibits, other than Exhibits 1, A, B and C, are returned.

​​​​​​​____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 28 September 2021