O'Donnell v Woollahra Council - [2009] NSWLEC 1066

Land and Environment Court

of New South Wales

CITATION: O'Donnell v Woollahra Council [2009] NSWLEC 1066

PARTIES:
APPLICANT
Rebecca Lockhart O'Donnell
RESPONDENT
Woollahra Council

FILE NUMBER(S): 11226 of 2008

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- Modification of existing rear boundary wall and installation of sliding gates.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Paddington Development Control Plan 1999

DATES OF HEARING: 04/03/2009

DATE OF JUDGMENT:
5 March 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Green, solicitor
of Pikes Lawyers
RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

5 February 2009

11226 of 2008 Rebecca Lockhart O'Donnell v Woollahra Council

JUDGMENT

Introduction

1 This appeal relates to a development application for the provision of an off-street car parking space on the property at 46 Cambridge Street, Paddington. More particularly the proposal requires the demolition of part of the existing rear boundary wall in Glenmore Road and the installation of sliding gates. An existing pedestrian gate is to be removed and the wall reinstated. A street tree is to be removed and a replacement tree provided.

2 The gate was originally proposed to be located in the centre of the site but following discussions and consideration of Council's without prejudice proposed conditions of consent the applicant now proposes that it be relocated almost at the southern extremity of the site so as to utilise the existing gateway and to minimise the extent to which the original stone base is to be removed.

3 The site is developed with a three-storey dwelling that is one of a row comprising four Victorian period Italianate style terrace houses. The subject rear masonry wall extends along the Glenmore Road frontage of three of the houses in the row and comprises a sandstone block base that supports a brick wall. It has gateways into the rear yards of the three dwellings. In 1987 the brickwork was rebuilt on and in front of a concrete plinth then rendered and painted in accordance with a development application submitted to the council in 1986. Whilst there is only limited information about the original wall I understand that the rebuilt wall is different from the original wall. The sandstone block base that is viewable from the street has various heights (varying between about 400-500 mm and zero) is the only remaining part of the original wall.

Planning controls

4 The site is zoned 2(a) Residential under Woollahra Local Environmental Plan 1995 and is within the Paddington Heritage Conservation Area. Whilst the row of houses are not listed heritage items they are within the vicinity of the heritage listed Glenmore Road public school. Clause 28(1) of the LEP requires that inter alia, the demolition or alteration of a building or work within a conservation area may not be carried out without development consent. Also applicable is Paddington Development Control Plan 1999.

5 The application was advertised and two submissions were received, one from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 1066
Decision Date: 5 March 2009

CaseChat Overview and Summary

Rebecca Lockhart O'Donnell sought to modify an existing rear boundary wall and install sliding gates to provide an off-street car parking space on the property at 46 Cambridge Street, Paddington. The Woollahra Council refused the application. O'Donnell appealed the decision. The key issue was whether the proposed modifications would have a negative impact on the character of the conservation area and the row of houses, and whether approval of the proposal would create an adverse precedent. The Court considered the heritage significance of the area and the impact of the proposed changes on the character of the conservation area. The heritage experts disagreed on the impact of the proposal, with one expert stating that the modifications would have an adverse impact on the streetscape, while the other expert argued that the effect of the proposal on the conservation area was almost negligible. The Court was not persuaded that the changes would adversely affect the conservation area. The Court found that the proposal would do little to change the relationship between the existing wall and the rear of the three terraces, and that the significance and visual appeal of the group of houses would not be adversely affected. The Court also found that the concern about creating an inappropriate precedent was not sufficient to refuse the application. The Court granted the appeal and approved the development application, subject to certain conditions.

Orders