O'Brien v Woollahra Municipal Council

[2019] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation:	O’Brien v Woollahra Municipal Council [2019] NSWLEC 1402
Hearing dates:	13 August 2019
Date of orders:	27 August 2019
Decision date:	27 August 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development consent for DA145/2018 for alterations and additions including new attic level with a rear facing dormer and skylight is granted, subject to the conditions at Annexure ‘A’. (3)   The Exhibits are returned, except for Exhibits A and C.
Catchwords:	DEVELOPMENT APPEAL – Paddington Heritage conservation area – heritage conservation – desired future character – rear wing addition – Woollahra development control plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Richard Leighton O’Brien (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicant) S Simington (Solicitor) (Respondent)   Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/382716
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’) against the refusal by Woollahra Municipal Council (‘the Respondent’) of Development Application DA 145/2018 (‘the DA’) for alterations and additions including new attic level with a rear facing dormer and skylight.

2. The site is legally described as Lot 7 in DP 913694, and is also known as No.11 Brown Street, Paddington having a total site area of 90.7m2 and comprising a frontage to Brown Street and McLaughlin Lane in the order of 4.0m, and a site depth of approximately 23m to the southern and northern boundaries.

3. The site is located within the R2 Low Density Residential zone under the Woollahra Local Environmental Plan 2014 (WLEP), the objectives of which are in the following terms:

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

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

•  To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

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

4. The site is also within the Paddington Heritage Conservation Area (HCA). Heritage items, and heritage conservation areas, are listed in Schedule 5 of the WLEP. The objectives of the Heritage conservation in the Woollahra Municipal Council area are found in cl 5.10 of the WLEP, and provide, relevantly:

(a) to conserve the environmental heritage of Woollahra

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views.

…

5. Subclause 5.10(2) requires consent for any of the following:

(a) demolishing or moving any of the following or altering the exterior of any of the following (including in the case of a building, making changes to its detail, fabric, finish or appearance):

…

(iii) a building, work, relic or tree within a heritage conservation area

6. The essential background to the matter is particularised in the Respondent’s Statement of Facts and Contentions (Ex 1). The Council’s primary contention is that the proposed ground floor rear wing including the skillion roof form, triangular rear window and side louvres is inconsistent and unsympathetic with:

1. the Paddington heritage conservation area;

2. the group of terraces of which it is part; and

3. the existing building’s form.

7. The significance of the Paddington HCA is found at C1.2 of the Woollahra Development Control Plan 2015 (WDCP) which states, relevantly:

“Paddington is a unique urban area which possess historical, aesthetic, technical and social significance at a National and State level. An important factor in the significance of Paddington is its exceptional unity, encompassing scale, character, history, architecture and urban form.

…”

8. As the issues in contention relate solely to questions of heritage impact, the Court was assisted by heritage experts Mr Zoltan Kovacs for the Applicant, and Ms Catherine Colville for the Respondent.

9. The hearing commenced with an onsite view, at which there were no objectors. However the Court viewed the subject site, and adjoining properties from Brown Street, Walker Lane and McLaughlin Lane.

10. While standing in McLaughlin Lane, the Court’s attention was drawn to the rear extension at No.21 Brown Street by Mr Kovacs which the experts agree is an intact example of the original rear wing extension typical of the row of terraces, displaying a single storey, twin-gable form, and free standing chimney.

11. Throughout the proceedings, both parties relied on drawing A02 (Ex A), reproduced below, which shows the rear elevation of the terrace group comprising Nos.1-23 Brown Street, including the roof forms of the rear extensions which are found on each property and, to varying degrees, are visible from McLaughlin Lane.

12. The Respondent contends that the skillion roof form is inconsistent with the objectives and controls of the WDCP found in the following provisions:

• C1.3.4 – Multi-storey terraces style housing

• C1.4.3 – Rear elevations, rear additions, significant outbuildings and yards

• C1.4.4 – Roofs and roof forms

• C1.4.5 – Building height, bulk, form and scale

13. While it is acknowledged that gable roof forms are common in the rear extensions to the row of terraces, the Applicant submits that there is actually little consistency between the roof forms as documented by Drawing A02 which shows a variety of widths and pitches in the current roof forms. Some occupy the full width of their sites, while others retain a side passage which, according to the Applicant, is due to Council in the past, approving the demolition of original fabric, features and details, and approving roof forms that are inconsistent in materials, width and pitches.

14. In support of this position, the Applicant relies on Figure 26 of the Heritage Impact Assessment prepared by Mr Kovacs (Ex D) which shows that rear extensions to terraces at Nos.1, 3, 5, 7 and 19 have been completely rebuilt, while extensions to terraces at Nos.9, 11 and 23 have had major alterations. As a consequence of the modification to so many properties in the row of terraces, the Applicant submits that the terraces cannot be defined as an ‘unaltered group’ as the Respondent contends.

15. The WDCP defines the term “unaltered” to mean:

“In relation to a building or group of buildings means that the building or group of buildings has retained its original form and character but may have minor changes including changes to windows and doors and some loss of detail that may be reversible.”

16. The parties dispute whether the row of terraces should be defined as an unaltered group of buildings. The relevance of this is found in Part C1.4.3 of the WDCP which provides objectives for rear elevations, rear additions and the like, including:

“Some rear building forms survive in unaltered groups of houses and contribute significantly to the character of the heritage conservation area.

…

O1 – To retain the forms and character of traditional rear elevations of contributory buildings, particularly where they exist in unaltered groups

O2 – To ensure that rear alterations and additions are of sympathetic design and construction

O3 – To ensure that the distinctive shared characteristics of groups of contributory buildings are retained and enhanced

O4 – To enable sympathetic contemporary design and use of contemporary materials in appropriate circumstances.”

17. Controls in Part C1.4.4 Roof and roof forms also refer to unaltered groups:

“C2 Existing patterns of roof forms within groups of unaltered buildings must be retained.”

18. The Applicant cites Council’s own internal heritage assessment (Ex 2, Tab 13) to support its position that the proposed development is consistent with the relevant controls, and that the terraces have been modified, as stated at Folio 266:

“The proposal generally complies with the relevant objectives and controls of the Paddington DCP. The row of 12 terraces has been substantially altered over time.

…”

19. Relatedly, Part C1.2.3 Character Elements of the WDCP seeks to provide guidance when alterations are contemplated, to retain distinguishing features of the area, which submits it has followed:

“Alterations to the rear of properties require detailed consideration so as not to alter the proportion, scale and the cohesion in groups of buildings. Due to the topography and subdivision patterns, rear elevations are often highly visible from the public domain.”

20. The Applicant submits that the proposed development, being single storey in height does not alter the proportion, scale or cohesion of the terrace group and relies on Fig 9 at Part C1.4.3 of the WDCP (Ex 2, Folio 149) which advises that “greater freedom is permitted of the architectural treatment of ground floor extensions than for visible upper floor additions”. Furthermore, skillion roofs are a common feature of the Paddington HCA and so are an appropriate response to the site, and are also an effective means of achieving natural ventilation and daylight to ground floor living areas in a terrace.

21. Finally, the Applicant considers the visual impact of the proposed development to be negligible due to the combination of low volume of foot traffic, the unusually narrow width of McLaughlin Lane, and the high fences that will restrict the sightline from the public domain.

22. As this appeal centres on what is an appropriate form for the roof of a ground floor rear extension in a row of terraces, located within a heritage conservation area, it is relevant that the experts agree in the joint expert report (Ex B) that minor changes to the roof form (including the form, window detailing and louvres/ventilation) of the proposed rear single storey addition could resolve the contentions.

23. The experts also agree that four properties within the row of twelve terraces retain the original form of the twin-gabled rear-wing extension, being those terraces located at Nos.13, 15, 17 and 21 Brown Street, and only one property in the terrace group retains the original free-standing chimney that was once a consistent feature of the terrace group, as seen in Picture 1 of the joint report (Ex B, page 6).

24. In her oral evidence, Ms Colville restated her view, expressed in the joint report, that the roof form is the key architectural element that would be seen from three locations in the rear lane, being at the intersection of McLaughlin Lane and Walker Lane, in the lane between the site itself and a bend in McLaughlin Lane to the north of the site, and at the bend in McLaughlin Lane.

25. Furthermore, the ground floor rear wing extensions are, according to Ms Colville, a shared characteristic of the terrace group and are likewise discernible as generally unchanged and intact when viewed from the laneway. This shared characteristic would be disrupted by a skillion roof being inserted in to the group, and could set a precedent for other terraces in the group.

26. In the alternative, Mr Kovacs considers the dominant element visible from McLaughlin Lane to be the two-storey row of terraces, while the ground floor rear extensions, having lost the original free-standing chimney feature, do not play a strong role in defining the character of the terrace group when viewed from the lane. To Mr Kovacs, the integrity of the two-storey form of the terrace group is assessed as high, while the integrity of the single storey rear extensions is assessed as low.

27. In her oral evidence, Ms Colville acknowledges that the height, scale and bulk of the proposed roof form is consistent with the height, scale and bulk of adjoining roofs which the Applicant considers to be consistent with Part C1.4.5, Control 3 which states:

“The height, bulk, form and scale of infill and new development must be consistent with the predominant height, bulk, form and scale of appropriate adjoining buildings. Conformity with adjoining buildings is not appropriate in circumstances where the development site adjoins a building which is a substantially taller landmark building, or is a building considered to be intrusive due to its excessive height and incompatible design.”

28. Given Ms Colville’s acknowledgement, the Applicant submits the proposed skillion roof can be said to be common in the Paddington HCA, consistent with the terrace group, and with the relevant controls in Part C1.4.5 of the WDCP.

29. In his oral evidence Mr Kovacs stated his view that the proposed roof form may be considered intrusive in the group, and while an alternative roof form may be more compatible, he acknowledged an alternative was not before the Court and so the proposed roof was, in his words, a very acceptable compromise.

30. Dr Smith, for the Applicant, considers an alternative roof form, being a gable roof as preferred by Council, to be antipathetic to principles of good environmental design as north is located to the side boundary. A gable roof form would result in the northern portion of the roof sloping down to the northern aspect, which is inferior to the proposed asymmetrical skillion form, which optimises daylight to provide light and warmth to the living area through high level clerestory louvres.

31. Furthermore, the Applicant submits that when viewed from the southern end of McLaughlin Lane, the skillion roof would appear as one half of a gable roof, and so any visual impact of the skillion roof and north-facing louvres would be limited to the view of the north elevation, seen when travelling south along the lane.

32. Finally, the Applicant questions why the Respondent would seek to impose a roof form upon the site that has never been a feature of the site, and is not consistent with the original roof form that is evident in historical photos, and is only seen today at the rear of No.21 Brown Street.

33. Regardless, being responsive to the agreed position of the experts, Dr Smith for the Applicant, tendered a 3D view of the proposed development (Ex C) that varies from the roof form as originally contained in the Class 1 application (Ex A), and asked Ms Colville whether the alternative roof form illustrated the minor changes referred to in the joint report, and so would resolve the contentions.

34. Ms Colville stated that the roof shown in Exhibit C did not resolve the issues in dispute as it continued to show a glazed gable end, and an extent of glazed louvres that was unacceptable, however an appropriate solution would involve a gable roof form which the Council considers to be a key shared characteristic of the terrace group.

35. The Applicant acknowledges that while the roof form shown in Exhibit C may not fully resolve the contentions, if the Court was minded to do so, the Applicant would accept such a modification to the application by condition pursuant to s 4.17(1) of the EPA Act which provides the power, at subpar (g) for the Court to impose conditions, if modifies details of the development the subject of the development application.

36. The parties hold differing views as to whether skylights would be a reasonable substitute for the clerestory louvres proposed, and whether air conditioning would be required to provide mechanical ventilation, and environmental comfort. However, the Court was not assisted by expert evidence on daylighting or ventilation. Instead, the experts discussed how skylights might be applied to a gable roof, and require a modest upstand for flashing and fixings.

Findings

37. While the Brown Street frontage displays consistency across the terrace group, the extent of alterations already evident in rear extensions to the terraces suggests, in my view, that the terrace group is not unaltered. The removal of what would have been highly characteristic chimneys to the rear in all but one terrace; the building-over of side passages; the demolition of the rear-most ‘outhouse’ form in half of the group, and the variety of roof materials and pitches that have been applied to the rear extensions has resulted in a diversity of forms with little consistency.

38. Furthermore, I accept the evidence of Mr Kovacs that the dominant visual form when viewed from McLaughlin Lane is of the west-facing, two-storey wall formed by the terrace group. In giving weight to his opinion, I consider the original pattern of window openings, and the gutterline of the upper terrace roof which have been largely retained in their original form and location, support Mr Kovacs’ position.

39. I am satisfied that the proposed development will not alter the proportion or scale of the terrace group as set out in Part C1.2.3 of the WDCP, and will not adversely impact the heritage significance of the Paddington HCA pursuant to cl 5.10(4) of the WLEP. In arriving at this conclusion, I consider the proportion and scale of the terrace group to be predominantly characterised by the two-storey terrace form for the reasons set out at [36], and I note the ridge height of the proposed development is within a line that appears on Drawing A02 which depicts the descending height of the ridgelines in the rear extensions across the group, until it is interrupted by the higher ridge of the gable located at No.19 Brown Street.

40. Finally, I consider the proposed development is generally consistent with the future image and function of the Paddington HCA described as being part of the desired future character of the area. The proposal seeks the removal of non-original fabric, and the retention of parapets, chimneys, mixture of roofs and the like as found in Part C1.2.4 of the WDCP. Furthermore, for the reasons stated earlier, I consider the proposed development to be sympathetic contemporary design that strikes an appropriate balance between the conservation of the area’s built heritage, and the contemporary desire for amenity offered by sustainable design.

41. The Applicant submits an alternative design (Ex C) that retains all aspects of the proposal but for a gable roof to the rear extension, and submits that the Court could, by imposing a condition, require a further amendment to the plans. However for the reasons already stated, I consider the proposal before the Court to be compatible with the character of the terrace group and the Paddington HCA. Requiring further amendment to the plans by condition, the possible implications of which are not before the Court, would result in a roof form that, for the reasons stated at [32] the Applicant regards as alien, and for the reasons stated at [34] would fail to satisfy the Council.

Orders

42. The orders of the Court are as follows:

1. The appeal is upheld.

2. Development consent for DA145/2018 for alterations and additions including new attic level with a rear facing dormer and skylight is granted, subject to the conditions at Annexure ‘A’.

3. The Exhibits are returned, except for Exhibits A and C.

………………………

T Horton

Commissioner of the Court

Annexure A (497 KB)

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Decision last updated: 27 August 2019