Rutherford v Sydney City Council
[2006] NSWLEC 572
•30/08/2006
Land and Environment Court
of New South Wales
CITATION: Rutherford v Sydney City Council [2006] NSWLEC 572 PARTIES: APPLICANT
RESPONDENT
John Rutherford
Sydney City CouncilFILE NUMBER(S): 10194 of 2006 CORAM: Hoffman C KEY ISSUES: Development Consent :- Alterations to a heritage item, urban design principles, driveway, car space, streetscape, pedestrian footpath, pedestrian safety, conservation area, parking LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Environmental Plan No. 49
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997
South Sydney Development Control Plan No. 11, Transport Guidelines
South Sydney Heritage Conservation Development Control Plan 1998DATES OF HEARING: 30/08/2006 EX TEMPORE JUDGMENT DATE: 08/30/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr J C Rollason, solicitor
SOLICITORS
Lane & LaneRESPONDENT
Mr S Kondilios, solicitor
With Ms P Whiteford, solicitor
SOLICITORS
Maddocks
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
30 August 2006
JUDGMENT10194 of 2006 John Rutherford v Sydney City Council
1 This is a Class 1 appeal No. 10194 of 2006 between John Rutherford and Sydney City Council in respect of Conditions 2, 3 and 4 in Sch 1A of consent No. D/2005/1477. The consent is for alterations to a heritage item on the corner of Oatley Road and Stewart Street, Paddington.
2 The building is a two storey terrace dating from about 1880. Although it has a symmetrical Victorian Italianate balcony and lace work and French doors to Oatley Road, its address and entry is from Stewart Street and is known as No.1 Stewart Street. That façade is much less ornamented and is set on the property boundary with footpath. There are four windows, the front door and a service entry door that have no symmetry in pattern or size but do have the vertical proportions of about 1.5 vertical to 1 horizontal typical of the period that the building was constructed. The evidence is that the Stewart Street façade is Regency style.
3 The house extends the full length of the Stewart Street boundary and has an internal courtyard. The service door is next to the common boundary with No. 3 Stewart Street, a two-storey Victorian terrace. The service door goes into a corridor leading to the courtyard. One side of the corridor is the boundary wall, the other is a storeroom and a pantry. The original application sought a number of alterations to the heritage item. The one related to this appeal is the proposal to demolish the service corridor, storeroom and pantry to create a carport beneath the upper storey.
4 The opening in the Stewart Street façade would be about 3 m wide and carry right through to the courtyard to enable a car to fit. The elevation in drawing 03F showed the opening about 2.5 m high, but the section in drawing 05F showed it 2.9 m high. Whilst looking at the drawings on site, I noticed in drawing 03F the four windows on the Stewart Street façade were shown in the wrong size and proportions compared to the actual, also an existing chimney was not shown. The applicant said these were drafting errors and no change was intended to those items. The applicant said it did not intend to alter the front door to an arched opening with side lights as shown on the plans. The front door could remain as is.
5 The original application had a roller shutter on the street façade. The applicant had amended that before the hearing to be a set of pike stave or palisade gates that would open outwards across the footpath that ran immediately beside the Stewart Street wall of the building. Conditions 2, 3 and 4 of the consent effectively refused any of the works to the Stewart Street façade and any demolition internally of the service corridor, pantry and storeroom.
6 The whole Paddington area is listed in the national register as a heritage conservation area. The applicable Sydney Local Environmental Plans also declare the conservation area in State legislation for Woollahra and Sydney Council areas. The subject house and two of its neighbours, Nos. 47 and 49 Oatley Road, are heritage items under the applicable Local Environmental Plan.
7 Number 49 actually has a garage door in its street façade approved some years ago.
8 The listing of the subject property at No. 1 Stewart Street gives it local significance and states “two-storey Italianate style terrace house” with no further detail.
9 The issues are:
1. The proposal does not comply with the Residential 2(b) zone objective (c) of South Sydney Local Environmental Plan 1998 in that the proposed garage is not in character with the surrounding built environment having regard to s 79(C)(1)(a)(i) of the Environmental Planning and Assessment Act 1979 .
2. The proposal is inconsistent with the design principles outlined in cl 28 of the South Sydney Local Environmental Plan 1998, as the driveway and car space will not reinforce and enhance the streetscape and character of the locality, will not be compatible with the design of the neighbouring development and the garage opening is larger in width than 2.4 m in accordance with the Environmental Planning and Assessment Act 1979 (Section 79C(1)(a)(i)).
3. The proposed development is inconsistent with cl 1.1.3 in Pt F of the South Sydney Development Control Plan 1997, as the proposed driveway and car space will significantly compromise the quality of the streetscape, disrupt the continuity of the pedestrian footpath, compromise pedestrian safety and result in a reduction in the provision of on-street car parking.
4. The proposed development is inconsistent with the objectives of Pt 1.2, South Sydney Development Control Plan No. 11, Transport Guidelines for development namely “to ensure that the design of parking areas and their access is safe and compatible with best practice standards”.
5. Due to the objections received from surrounding residents, approval of the application is not in the public interest in accordance with the Environmental Planning and Assessment Act 1979 (1)(e).
6. The proposal does not comply with cll 22a, 22e, 22f, 23A, 23B of South Sydney Local Environmental Plan 1998 in relation to development to a heritage item within a conservation area having regard to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979.
7. The proposal does not comply with section 1.6 of Pt E of the South Sydney Development Control Plan 1997 relating to the compatibility with the streetscape and compromise of street urban design objectives having regard to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979.
8. The proposal does not comply with s 4.6.1 of the South Sydney Transport Development Control Plan No. 11 in that garages are not permitted in the front of terrace houses in any circumstances in conservation areas unless the quality of the streetscape is not compromised having regard to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979.
9. The proposal does not comply with s 4.6.2 of South Sydney Transport Development Control Plan No. 11 relating to undesirable driveway locations, namely driveways should not be located closer than 1 m from the adjoining side boundaries having regard to s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act.
10. The proposal does not comply with the provisions of the South Sydney Heritage Conservation Development Control Plan 1998 relating to sympathetic and sensitive development within a conservation area having regard to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979.
11. The proposal does not comply with Pt 4.1.7 of South Sydney Heritage Conservation Development Control Plan, 1998 relating to off-street parking. Terrace houses with minimal setbacks from the street should not be altered internally or externally to accommodate off-street car parking having regard to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979.
12. The proposal does not comply with Pt E 1.6 of the South Sydney Development Control Plan, 1998 relating to parking, access and servicing, as the design is not safe for users including pedestrians and cyclists having regard to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 .
10 The parties had agreed that the Court should appoint a joint expert heritage consultant, Mr A G Patch, who had prepared a report and gave evidence.
11 The respondent’s evidence was heard from:
- Mr A Sheumack of No. 3 Stewart Street,
- Mr D Normoyl of No. 9 Stewart Street,
- Mrs F Normoyl of 9 Stewart Street,
- Mr A Boss of the Paddington Society and
- Miss L Reddy of No. 41 Stewart Street.
12 The applicant’s evidence was heard from Mr J Rutherford, applicant and builder.
13 A heritage impact statement had been part of the original development application and it was tendered, it had been prepared by Mr D B Springott, architect who did not appear to give oral evidence.
14 A summary of the objectors’ concerns is:
1. The heritage item should remain intact in order to conserve it and retain the quality of the conservation area and the local streetscape.
2. The operation of the garage would cause potential danger to the many children of the street who would pass No. 1 Stewart Street to get to a small park and play equipment area across Oatley Street.
3. The creation of the drive crossing would delete one public car space on Stewart Street and create a private one in a locality where parking is in great demand since many terrace houses have no on-site parking.
15 It seems to me that the heritage evidence is the most important in this appeal. Mr Patch had reviewed Mr Springott’s report and felt it had reached the wrong conclusion. He said in summary all the applicable controls on the locality aimed at conservation revealed that a garage inserted in the street façade of the heritage item was not appropriate. He said a heritage item has more stringent tests than a contributory item such as other terrace houses in the locality might have.
16 Heritage items are designated to demonstrate not just the architectural style of the period, but also the way the building functioned. The service corridor to the internal courtyard and the storeroom and pantry are part of that. He also said the proposed alterations are not in character with the surrounding built environment in that they introduce elements that are anomalous with respect to the existing façade of No. 1 Stewart Street. The garage door is a new large opening that is of differing scale and proportion to those found in the composition of the façade.
17 The proposed opening to the Stewart Street façade will diminish the historic and aesthetic significance of the terrace through the introduction of openings that are inconsistent with those employed in the design of the façade. While driveway and garage access openings are found in the general area, these are associated with the rear access to properties or are associated with detracting elements of the conservation area. Most also appeared to pre-date the current planning regime, for example the garage to No. 49 Oatley Road.
18 The proposed opening will detract from the presentation of the subject terrace house and will have negative impacts on the character and streetscape of the locality. The proportion of the opening to the garage is not compatible with existing openings to the walls of the subject terrace house and neighbouring terrace houses and will detract from the appearance of the public domain.
19 The original proposed aluminium panelled door in the garage opening is not detailed, but would also introduce a foreign and incompatible element into the façade in terms of materials and textures. This element would also be incompatible with the streetscape and character of the conservation area.
20 An alternative design that was provided by way of a photomontage indicated a pike stave or palisade gate in lieu of the roller door. This alternative would arguably have greater impact on the façade of the terrace house in that it introduces an uncharacteristic void into the façade and would allow views of the vehicle parked in the car space from the street. The proposed outward opening gates would obstruct pedestrians and may cause hazard to those using the footpath.
21 He also said s 4.6.1 of the South Sydney Transport Development Control Plan No. 11 says that garages are not permitted in the front of terrace houses in any circumstances in conservation areas unless the quality of the streetscape is not compromised.
22 Given the bald face nature of the Stewart Street façade of the terrace, it is a physical impossibility to comply with the requirements of this clause to place the vehicle entrance at the rear or side of the front façade. The proposal to introduce a large opening into the façade, together with footway crossover, will have adverse impacts on the character and quality of the streetscape.
23 Mr Patch noted that the heritage item is unusual in that it addresses two streets with major facades, whereas many corner terraces present a blank side wall to a second street frontage and have a paling fence to the rear yard on the second street. Putting a gate in a rear fence has far less impact on streetscape and heritage significance than this proposal.
24 Overall I agree with Mr Patch’s evidence and that the application should be refused. I note, however, this appeal was filed under s 97 of the Environmental Planning and Assessment Act and under s 83(2)(a) the existing consent ceases to be if I dismiss the appeal. Therefore to give effect to my decision and retain Conditions 2, 3 and 4 of Sch 1A of the consent I must uphold the appeal but re-issue the conditions as originally set by the council.
25 I note that during the hearing it became clear that in lieu of drawing 02F, a later drawing 02G should be substituted. I retain that plan on the file and attach it to Exhibit C.
26 Therefore the orders of the Court are that:
1. The appeal is upheld.
3. The exhibits are returned to the parties except Exhibits 1, 2, 4, C and D.2. Consent is granted to alterations to No. 1 Stewart Street, Paddington, with deletion of certain works as annotated on File Name 1317PlanV2 Drawing Nos. 01F, 03F, 04F, 05F and File Name 1317 Plan V3 Drawing No. 02G by Paragrid Architecture Pty Ltd as in Exhibit C of this appeal. The drawings to be amended by and built in accordance with the conditions in Annexure A hereto.
___________________
K G Hoffman
Commissioner of the Court
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