Rosenthal v Woollahra Municipal Council

[2006] NSWLEC 77

Land and Environment Court

of New South Wales

CITATION:

Rosenthal v Woollahra Municipal Council [2006] NSWLEC 77

PARTIES:

APPLICANT
Jeffrey Steven Rosenthal

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

11288 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- s 121B Order - Removal of unauthorised skylight

LEGISLATION CITED:

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

DATES OF HEARING:

07/02/2006

 
DATE OF JUDGMENT: 

02/24/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Seymour, solicitor

RESPONDENT
Mr Connell, solicitor
for Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

24 February 2006

11288 of 2005 Jeffrey Steven Rosenthal v Woollahra Municipal Council

JUDGMENT

Background.

1 This appeal was lodged against a s121 B Order, requiring the removal of unauthorised skylights, installed in a terrace house at No. 48 Boundary Street, Paddington.

2 The Order of 19 April 2005 required the removal of skylights installed in both the front and rear attic roof. However, the Order was subsequently modified to require only the removal of the front skylight and replacement of the resultant roof area.

3 In order of to retain the front skylight, the applicant provided the following responses:

• Consideration should be given to the circumstances in which the front roof skylight was installed. This occurred as a result of necessary roof repairs after a hail storm in April 1999 shattered the roof requiring its replacement;
• The appearance of the skylight is appropriate because it is low profile, flush with the roof surface and predominantly glass with simple unobtrusive detailing that mergers with the roofing material;
• The front skylight does not detract from the streetscape because it is barely noticeable from Boundary Street due to the height of the roofline and its obfuscation by the huge fig tree outside the property, that is subject to council's tree preservation order;
• The retention of the front skylight adds to the amenity of the dwelling because of its propensity for cold and damp.

Woollahra Local Environmental Plan 1995.(LEP)

4 This property is situated the Paddington Heritage Conservation Area and is subject to the following aims and objectives of the LEP:

• cl. 2(1) (c); to promote the management, development, conservation and economic use of property within the area of Woollahra ;
• cl. 2(1) (g); to conserve the environmental heritage of the area of Woollahra;
• cl. 2 (2) (g) (ii); to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas;
• cl. 2 (2) (g) (iii); to encourage the restoration for Reconstruction buildings or works which are heritage items or building and works at contribute to the character of heritage conservation areas.
• Cl.8 (5); The Council shall not grant consent to the carrying out of development of land to which this plan applies unless the council is on the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. Paddington Development Control Plan 1999.
  

5 This DCP contains aims, objectives and design controls relating to heritage conservation which are contained in the Woollahra Local Environmental Plans. The following aspects are relevant:

• Objective 1.3 (b) to acknowledge and conserve the unique National heritage significance of Paddington;
• Objective 1.3 (c) to provide guidelines and controls which seek to protect the significant character of Paddington and which encourage contemporary design which responds appropriately to that character ;
  

6 Part 5 of the DCP contains the conservation and development guidelines and controls, wherein part 5.2.1 dealing with dormer windows and skylights is relevant. It states that:

"skylights located in highly visible positions, large skylights in skylights with protruding profiles can detract from Paddington's roofscape."

7 The objectives and controls for the skylight elements include:

01 To retain original roof forms.
02 To conserve the original roofscape of a building, groups of buildings and streetscapes.
03 To minimise the impact of buildings and skylights on the form, appearance and fabric of roofs.
G9 Skylights are not to be placed in roofs where they will be visible from the public domain.

8 Mr Seymour's submissions on behalf of the applicant, are made on the basis of the following two primary issues:

• there is little or no impact on the streetscape or heritage values of the streetscape;
• there has been a long period of time between the installation of the skylight and the issue of the Order, so that the impact (if any) has been accommodated by the streetscape.

9 With regard to the first issue, the submission is that the skylight has minimal to no visibility from street level because it is high and flush with the roof of the property and is well screened by the mature street tree. Its relatively small area of 2.25 sq m in a roof of approximately 27 sq m renders is a very small, unobtrusive feature of the roof.

10 Accordingly, Part 5.2.1 of the DCP has objectives that allow skylights to be installed, providing they are of "minimal impact". As there is no complaint in the Order, it must be taken that the guideline has been complied with. Furthermore, the explanation in this Part 5.2.1 of the DCP refers to skylights in "highly visible positions" or which are "large" or which have "protruding profiles" are those which "detract from Paddington's roofscape". As the subject skylight is not highly visible, Mr Seymous submission is that it is not inconsistent with these provisions of the DCP.

11 The next submission is that the Court is entitled to take into account the five-year delay between the works being carried out and the issue of the order as determinative in this appeal. The Court may exercise the discretion not to affirm the order since the Court may consider the works on the property to be trivial and so any breach purely technical.

12 Against this, Mr Connell for the respondent submission is that the skylight was installed without consent and is inconsistent with the provisions of the LEP and DCP. The application of the various controls should be considered within the framework that seeks to acknowledge and conserve the unique National heritage significance of Paddington.

Conclusion.

13 Having considered the evidence presented to the Court, the submissions and undertaken a view, I do not consider this appeal should be allowed.

14 The property is situated within the Paddington Heritage Conservation Area where there are number of controls, which are aimed at conserving the heritage values of the Paddington area. These controls include objectives, which acknowledge and endeavour to conserve the unique National heritage significance of Paddington.

15 Therefore, on the basis that I accept the unique heritage significance of this Paddington area, I not consider that discretion to vary the development guidelines should be exercised, unless there are exceptional circumstances. It is apparent from site inspection, that there is a noticeable absence of skylights in the front roof elevations of the terraces in this neighbourhood and this is an element of the significant character of Paddington, which is sought to be protected.

16 Insofar as the skylight is screened by the mature vegetation, nevertheless it is observable from a number of vantage points in the surrounding streets. In the circumstances, I am inclined to give diminished weight to the screening effect of this vegetation, whose longevity cannot be guaranteed and whose form and screening may change as a result of future, pruning for safety or other reasons.

17 In my assessment, diminished weight should also be given to the submission that the five-year delay between the works being carried out and the issue of the Order, should allow discretion to be exercised in the favour of the applicant. Even though there does not seem to have been any complaints, nevertheless the skylight was installed without development consent and this avoided the normal s 79C considerations.

18 As this is the end terrace, in a row of terraces, where there are no other front skylights, the presence of such skylight is somewhat emphasised. I acknowledge Mr Connell's submission that the retention of this skylight is likely to cause precedential problems for any development of these adjoining terraces and accordingly I consider that some weight should be given to this submission. But more importantly, the view confirmed the visibility of the skylight, which by reference to the LEP objectives, I do not consider is an attractive, adaptation feature, nor do I consider it has a neutral effect. Accordingly it detracts, to some limited extent and is therefore not consistent with these objectives.

19 In considering the circumstances of this case, I also note the evidence that the skylight is required to allow light to the non-habitable attic area. In my opinion, the public interest considerations of adhering to the intent of the various controls to significantly restrict frontal skylights in this “unique” area, outweighs the private interest of maintaining an unauthorised skylight to provide light to this attic.

20 Notwithstanding this, I also accept that the heritage controls do allow for alterations and modifications of buildings in the Heritage conservation area. However any such allowance would presumably be after a detailed heritage assessment and relevant s 79C consideration. As evidence in this regard was not presented to the Court, I accept Mr Seymours alternative submission that a six month period in the Order is reasonable, so that any necessary arrangements can be made, prior to the removal of the skylight.

1. The appeal is dismissed.
2. A new s 121 B Order be issued, requiring the removal of the skylight and restoration of the roof area of the terrace at No. 48 Boundary Street, Paddington, within a period of 6 months from the date of the Order .
3. The exhibits be returned except 1 & B.

___________________

R Hussey
Commissioner of the Court
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