Smith v Woollahra Municipal Council

[2024] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smith v Woollahra Municipal Council [2024] NSWLEC 1202

Hearing dates:

21-22 February 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application DA 131/2023/1 for alterations and additions to the dwelling house at 29 Hoddle Street, Paddington, is refused.

(3) All exhibits except 3, 4, A, C, E and H are to be returned.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing terrace house within a Heritage Conservation Area

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34AA

Woollahra Local Environmental Plan 2014, cl 1.2

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Natalie Laura Smith (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
F Berglund (Applicant)
P Rigg (Respondent)

Solicitors:
Ters Legal (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2023/244212

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The owner of the terrace house at 29 Hoddle Street, Paddington, Natalie Smith (the Applicant), has applied for development consent for alterations and additions to the house, seeking to add a first floor rear wing including a bedroom and ensuite. Woollahra Municipal Council (the Respondent) refused this development application (DA 131/2023/1) on 13 June 2023 and it is from this refusal that these Class 1 proceedings arise.

2. These proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court arranged a conciliation conference and hearing pursuant to s 34AA of the Land and Environment Court Act 1979 over which I presided, which was held on 21-22 February 2024. No agreement was reached in conciliation and the matter proceeded to hearing on 21 February.

3. The site is located within the Paddington Heritage Conservation Area (HCA) and, pursuant to the Woollahra Local Environmental Plan 2014 (WLEP), is zoned R2 Low Density Residential within which development for the purposes of dwelling houses is permissible with consent.

4. The existing dwelling at 29 Hoddle Street (the subject site) is a two storey, two bedroom terrace house with a rear courtyard. It is the second in a row of six two-storey terrace houses, numbering 21-31 Hoddle Street.

5. All six terraces are described by the parties as intact except for the neighbouring, end-terrace dwelling at 31 Hoddle Street. To date, alterations have not been permitted to the rear external form of the first floor of this row, however the end terrace at 31 Hoddle Street has a first floor rear extension for which the Council has no record of approval or construction. Alterations and additions have been permitted to the ground floor and rear yards along the row, including to the subject site where a ground floor extension and two storey garden studio were granted consent in 2002 (Ex 1). Subsequently, it is the principal building form, which includes the front elevation, roof, front verandah, fencing, and first floor rear form of these terraces that the Respondent considers intact, notwithstanding the first floor anomaly at 31 Hoddle Street. There is no dispute between the parties that the subject site and associated row of terraces is contributory in the context of the HCA.

6. The works encompassed in the proposed development are limited to the first floor, at the rear of the dwelling. The application as amended includes the partial demolition of the existing rear external wall, and the construction of a relocated second bedroom and new ensuite towards the rear of the house at first floor. The existing rear wall subsequently becomes an internal wall between the second bedroom and ensuite, and a room described as a walk-in-robe/rumpus/study. The resulting layout does not increase the number of bedrooms, which remains at two, but rather reconfigures the first floor.

7. The Respondent contends that the proposed first floor extension at 29 Hoddle Street (the subject site):

1. Is inconsistent with the desired future character of the area;

2. Will have an adverse impact on built heritage, and;

3. Will have an adverse impact on adjoining development.

8. At the commencement of the hearing, leave was granted to amend the application before the Court in response to the joint conferencing of planning and heritage experts, principally to increase the setback of the first floor extension and to reduce the demolition of the existing rear wall to the first floor.

9. Irrespective of these amendments, for the following reasons, I find that the proposed rear extension is unacceptable and the appeal should be dismissed.

The impact of the proposed development on the desired future character of the HCA

10. The Respondent contends that the proposed development is inconsistent with the desired future character of the HCA. To establish what that desired future character is, I turn to the evidence of the heritage experts.

11. Mr Rappoport, the heritage expert for the Applicant, submits in oral evidence that, in his opinion, the desired future character of the HCA is to “protect the heritage fabric, and also facilitate change” (Transcript 21/02/2024, lines 8 to 9).

12. In response, Mr Ryan, the Heritage expert for the Respondent, submits in oral evidence and in the joint report of heritage experts (Ex 2), that the desired future character of the HCA is a planning consideration that is established through s 1.2(2)(l) of the WLEP, the objectives of the R2 Zone, and Section C1.2.4 of the Woollahra Development Control Plan 2015 (WDCP), which are as follows:

13. Aim of s 1.2(2)(l) of the WLEP is “to ensure development achieves the desired future character of the area”.

14. Pursuant to the WLEP, the relevant aims of the R2 Low Density Residential zone are:

•  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.

…

15. In WDCP Section C1.2.1, the terrace form is highlighted as contributing to the unique aesthetic significance of the HCA in the following way:

“The coherent and extensive Victorian built form comprising groups of terrace buildings on narrow allotments which step down hills, turn corners or sit in ranks along tree lined streets produces a singularly recognisable image.”

16. WDCP Section C1.2.4 establishes a desired future character for the HCA, of which the relevant clauses read:

“…

c) retains and promotes evidence of the historical development of the area and enables interpretation of that historical development;

d) retains the cohesive character evident in the low scale, high density built form;

e) retains distinctive features such as parapets, chimneys, mixture of roofs, complex of roads, laneways and alleyways, consistency of colours, subdivision patterns and buildings which follow the landform and the distinctive patterns of terrace house groups;

…”

17. I concur with Mr Ryan that the desired future character of the HCA is established through the application of the above aims and objectives.

18. When considering the impact of the proposed development on this desired future character, Mr Rappoport submits in the joint report of heritage experts (Ex 2) with reference to Section C1.2.4 (c) of the WDCP that the rear extension does indeed achieve the desired future character as per his definition, as it promotes “evidence of the historical development in the area by showing the current housing shortage in Sydney and the need for additional accommodation.” He continues: “a more historical approach would be to allow these changes so that future generations would be able to interpret our present lifestyle expectations relative to both the past and the future.” Finally, he considers that the scale of the proposed development is “relatively minute”, consistent with the two storeys permitted within this part of the R2 zone, and therefore does not disrupt the cohesive character described in WDCP Section C1.2.4(d).

19. In response, Mr Ryan submits that interpretation of the historical development of the area is achieved in part by the presence of intact groups of terraces, and as the subject site is one of an unaltered group (being numbers 21-29 Hoddle Street), that the proposed first floor extension, regardless of its scale, would degrade the intactness of the group and hinder the understanding and interpretation of the historical development of the area (WDCP Section C1.2.4(c)). Mr Ryan also clarifies that, although first floor extensions have been permitted to other terraces in other parts of Paddington, they are not permitted where the property forms part of an existing terrace group where the rear forms are unaltered, as is the case at the subject site, and in accordance with WDCP Section C1.3.4 O2 and O3. He therefore considers that the proposed development is not consistent with the desired future character of the HCA because it contravenes the aims established in WDCP Section C1.2.4.

20. Relevant to my consideration of this issue is the parties’ evidence on the perceived intactness of the row of terraces. While there is no doubt that this terrace is one in a row of six, the parties disagree on whether the terraces form an “unaltered group” (WDCP Section C1.4.3, O1). There is no dispute that the elevation to the street frontage is intact for all six terraces, however regarding the rear, first floor building form, consideration must be given to the intrusive addition to the end terrace at 31 Hoddle Street.

21. Ms Berglund for the Applicant submits that due to the addition at number 31, the rear forms of the group could not be considered intact, and that the existing form of number 31 provides context to which this development must respond. On this, and based on my observations from the site view, I concur with Mr Grevler-Sacks, the Respondent’s planning expert who states in the joint report of planning experts (Ex 1) that the addition at number 31 is considered intrusive and should not be used to set a precedent for further works. Additionally, he submits, and I concur that, as it is the last in the row of 6 terraces, even if number 31 was to be discounted, the remaining five terraces still form an intact group. Subsequently, I consider that the existing dwelling contributes to the cohesive character of the row, and that the stepped rear form demonstrates one part of the distinctive pattern of this terrace house group.

22. I further concur with the evidence of Mr Ryan that the proposed extension degrades the intactness of the group in a manner that does not respect and respond appropriately to its context, but instead takes its cue from, and reinforces, the intrusive extension at number 31 Hoddle Street. In degrading the cohesive character of this row of terraces and removing the distinctive stepped form evident at the rear of this row, the proposed development does not promote interpretation of the historical development of the area, contrary to the desired future character as set out in WDCP Section C1.2.4.

The adverse impact on built heritage within the HCA

23. The Respondent contends that the proposed removal of the rear wall at first floor and subsequent extension does not seek to retain the contribution and relationship of this building to the other buildings which comprise the group, and that this has an adverse and unacceptable impact on the built heritage of Woollahra.

24. I note in relation to the Respondent’s contention regarding the unacceptable removal of significant fabric that firstly, it is unclear whether the rear wall constitutes significant fabric but secondly, in the amended application the existing rear wall (initially proposed for removal) is retained to a degree that is, in the opinion of the Applicant’s heritage expert, Mr Rappoport, acceptable. I concur with the Respondent on this and note that in my considered opinion, the relevant objectives and controls of the WDCP (Section C 1.4.1 O10 and control C1(a)) are not contravened by the majority retention of the rear wall.

25. I turn then to the impact of the extension on built heritage within the HCA.

26. The experts disagree on the significance of the rear of the building in its current form. As already noted, consent has been granted to alter the ground floor to the rear on this site and neighbouring terraces, but thus far not to the first floor on any of the terraces within this row. Currently, the original form of the first floor is intact and consistent between the 5 terraces from numbers 21-29 Hoddle Street. The only anomaly in the row is the first floor addition to the 6^th terrace at 31 Hoddle Street which the Respondent states, and I accept, is considered ‘intrusive’ in the heritage context of the row.

27. I note that subsequent to the preparation of the joint reports of both planning and heritage experts that the application was amended to set back the proposed addition by 300mm from the alignment with the rear addition at number 31. When questioned in oral evidence, Mr Grevler-Sacks confirmed that although the setback does go some way to respecting the stepped nature of the principal form of the group, in his opinion it does not do so to a sufficient extent.

28. The significance of the rear of the building must subsequently be considered against the relevant heritage provisions, which are principally established in the WDCP and set out below.

29. Chapter C1 of the WDCP sets out detailed development controls for the Paddington HCA. Relevantly, the following parts of this chapter speak to rear building forms, principal building forms and groups of buildings in the HCA:

“C1.3.4 Multi-storey terrace style housing

Objectives

…

O2   To retain significant rear and side forms.

O3    To retain the rear forms of unaltered pairs and groups of terraces.

…

Controls

C1   Refer to objectives and controls in Section C1.4 General controls for all development and Section C1.5 Specific policy for building and site elements. “

“C1.4.1 Principal building form and street front zone of contributory buildings

Objectives

O1 To retain and conserve the principal building forms and street front zones.

…

O6 To retain the distinctive shared characteristics of groups of buildings.

O7 To retain, restore and promote the significance, contribution and relationship of a building within the context of a group of buildings.

O8 To conserve the significant original fabric of terrace houses, terrace groups and free standing buildings of similar age and character.

…

O10 To retain and conserve external original fabric and features characteristic to a traditional terrace semi-detached dwellings or dwelling house.

…

O12 To retain the historic framework of the building both as essential structure and as evidence of original patterns of construction and use.”

…

Controls

Principal building form

Exterior controls

C1 The significant external elements of a principal building form are to be retained and conserved, that is:

a) significant external fabric is to be retained and conserved;

b) characteristic elements such as roof pitches, eave heights and chimneys are to be retained and conserved;

c) no external alterations or additions are to be made to the significant elevations, details, materials or finishes of the principal building form except to allow for restoration or reconstruction;

d) the main rear wall to the principal building form should be left largely intact; and

e) significant verandahs and balconies are not to be infilled or enclosed.

...

C3 Where a building forms part of a group, any work to the principal building form must be designed to retain the contribution and relationship of that building to the other buildings or building which comprise the group.”

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

Objectives

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

…

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

…

Controls

Rear additions

C1 Alterations and additions to a building which comprises one of a group, or pair, must be designed with regard to the overall balance of the group, or pair, in terms of height, alignment, form, scale, breezeway pattern and architectural character and detail.

C5 Alterations and additions at the rear of buildings must:

a) not dominate or otherwise adversely compete with the form, height, proportions and the scale of that part of the building which is to be retained;

b) not reproduce or match a building which in terms of its height, bulk, scale and detailing is inappropriate to the heritage character of the area;

…

f) not extend beyond the predominant rear building setbacks at any level of a group or row of buildings; and

g) retain all original chimneys.

…

C7 Additions are not permitted where single or double storey rear skillion forms exist in an unaltered group. In such cases alterations are to occur within the existing building envelope.

…

C9 Unaltered groups with single storey rear wings must retain their single storey form. Single storey, courtyard housing style additions with attic rooms may be permitted, where the addition does not result in view loss of the main wing from the public domain.”

“C1.4.5 Building height, bulk, form and scale

Objectives

O1 To retain the distinctive height, bulk, form and scale of particular building types.

…

Controls

…

C3 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.

…”

“C1.4.6 Site coverage, setbacks and levels

Objectives

…

O2 To retain established building alignments, setbacks and levels.

O3 To ensure that new development continues the established alignments and setbacks of the established historic development in the streetscape.

…

Controls

…

C3 Siting and setbacks of all structures are to continue the immediate established patterns.

…”

30. With consideration of these controls within the WDCP, Mr Barber, the Planning expert for the Applicant, states in Ex 1 that the proposed first floor addition is sympathetic to the dwelling and the row of terraces in terms of height, scale, form, proportion and materiality because it aligns with the siting, setback and level of the adjoining first floor addition at 31 Hoddle Street, and forms an aesthetically cohesive relationship between both the group of terraces and the existing fabric of the principal dwelling. He further submits that the contribution of the building and the row of terraces to the HCA lies principally in its contribution to the streetscape rather than the rear form, and that the streetscape is not impacted by the proposed development.

31. Mr Barber also submits that the proposed extension is not dominant in form within the context, and that effort has been made to integrate it seamlessly within the existing built environment through building design, including through the use of a traditional skillion roof.

32. This opinion is supported by Mr Rappoport, who describes what is, in his opinion, the suitably proportioned architectural elements applied in the design of this extension. He goes on to submit that “this simple design, in my opinion, reflects necessary change in order to address the current housing crisis in Sydney” (Ex 2).

30. In Ex 2, Mr Rappoport submits that, when the development is considered against the provisions of the WDCP:

“I believe that in this case, the problem is with the DCP, not with the design.”

34. He continues:

“I am of the opinion that it would be extremely narrow minded of Council to reject such a small extension to the existing terrace. As a heritage architect, with more than 30 years of experience, I believe that not all change is bad. Sometimes change is necessary and it is behoved for us as heritage experts to not block change, but in fact, to develop models for change. I believe that while Council does not adopt this approach, there may be a dereliction of its duty. I find the DCP to be utterly inflexible, combative and defensive in terms of change and this is not a good way of managing minor applications of this nature.”

35. In response, Mr Rigg submits and I concur that, irrespective of any opinion on the merits of the WDCP, I am obliged pursuant to s 4.15(1)(iii) of the EPA Act to consider the proposed development against the provisions of this document.

36. I further note that despite Mr Rappoport’s evidence and the statement from Mr Barber in Ex 1 that the “proposed first floor addition contributes an additional bedroom and better meets the needs of residents”, the proposed development does not result in additional accommodation, but remains a two bedroom house.

37. Mr Grevler-Sacks submits in evidence (Ex 1) that the first floor rear form of the building is significant because of the retention of the original building form at this level, and because of the way the rear first floor of the terraces step in relation to each other. He states that the proposed development contravenes the objective to retain the distinctive shared characteristics of groups of buildings, contrary to WDCP Section C1.4.1 Objective O6.

38. He further states that:

“The alteration to the existing principal dwelling form at the first floor level would provide a further intrusive element to the group of terraces, and rather than retaining or enhancing the shared characteristic of the group, would remove it entirely. The proposed first floor addition has not been “designed with regard to the overall balance of the group, or pair, in terms of height, alignment, form, scale, breezeway pattern” (C1.4.3 C1). It extends from boundary to boundary, does not mirror the alignment of the building, alters the form and scale of the dwelling, and is an additional storey as compared with the rear of neighbouring dwellings at 21-27 Hoddle Street.”

39. Mr Barber supports this opinion in Ex 1, submitting that the proposed rear addition “is significantly oversized, exceeding the scale of the existing intrusive addition to no. 31 and not respecting the stepped nature of the principal dwelling forms that comprise the group.” He also submits that visibility from the street does not determine heritage significance and that the heritage contribution would be removed through the alteration and addition to the principal form of the dwelling.

40. When considering the impact of the proposed development on built heritage, I note in particular the objectives to retain the rear forms of unaltered groups of terraces (WDCP Section C1.3.4 Objectives O2, O3), to retain the distinctive shared characteristics of groups of buildings (WDCP Section C1.4.1 Objective O7), and to retain the forms and character of traditional rear elevations of contributory buildings, particularly where they exist in ‘unaltered groups.’

41. I concur with the Respondent that this particular row of terraces can be considered ‘an unaltered group’ from numbers 21-29, noting the intrusive addition to number 31, but also that the remaining 5 terraces are unaltered in terms of principal built form to the front, and to the rear first floor where the stepped relationship is apparent.

42. I further concur with the Respondent that the proposed addition represents excessive bulk in the context of the adjacent terraces, and in the context of the traditional rear elevation of the group. It is my considered opinion that the development would be inappropriate in scale, adversely impact the retained principal building form in question, and have an unacceptable impact on built heritage when considered against the provisions of the WDCP.

43. With consideration of Mr Rappaport’s submissions regarding the inflexibility of the WDCP, I note that EPA Act s 4.15 (3A)(b) requires the consent authority to be flexible in applying the provisions of the WDCP and allow reasonable alternative solutions that achieve the objects of those standards. However I also note that, as discussed above, in my opinion the proposed development fails to meet either the controls or the objectives of the relevant development standards within the WDCP.

The overshadowing of adjoining development

44. At the commencement of proceedings the parties heard an oral submission from the resident at number 31 Hoddle Street, Ms Gilberthorpe, where an objection was raised regarding, amongst other things, overshadowing to habitable rooms of her property and garden.

45. In closing submissions Ms Berglund referred to the overshadowing diagrams and suns-eye views that constitute Ex E to confirm firstly that the proposed development does not offend the relevant control regarding overshadowing of windows, WDCP Section B3.5.2, Control C1b. This control only refers to north facing windows, and no north facing windows are impacted by this proposed development. However, Ms Berglund also confirms the assessment of both planning experts that the extension results in some further overshadowing of Ms Gilberthorpe’s heavily overshadowed garden.

46. Section1.4.3, Control C4 of the WDCP stipulates that:

“…alterations and additions must be designed and sited so that sunlight is provided to at least 50% or 35m² with minimum dimensions of 2.5m, whichever is the lesser, of the main ground level private open space of adjoining properties for a minimum of two hours between 9am and 3pm on 21 June. Where existing overshadowing is greater than this, sunlight is not to be further reduced.”

47. Mr Barber clarifies in Ex 1 firstly that the private open space at 31 Hoddle Street does not currently receive the required sunlight to at least 50% of the area at any time between 9am to 3pm on 21 June, and that the proposed development further reduces this sunlight by 3.5m² at midday, 2m² at 1pm and 0.6m² at 2pm. Mr Barber considers this additional overshadowing to be minor, and located within the shadow of the substantial tree located to the rear of the site. No evidence was provided on the shadow formed by the tree.

48. Mr Grevler-Sacks further clarifies in Ex 1 that the useable open space at 31 Hoddle Street equates to approximately 29.5m² and that the proposal would reduce the average direct sunlight from reaching 29.1% of the open space to 22.7%. He submits that this sunlight is lost in the more useable part of the courtyard, and from my observations on site, I concur with this.

49. For these reasons, and with consideration of the oral submission of Ms Gilberthorpe, the Respondent considers and I concur that the extent of overshadowing caused by the proposed first floor rear addition on the rear garden of 31 Hoddle Street is unacceptable.

Conclusion

50. In my considered opinion, the proposed development is excessive in scale and bulk when viewed in the context of the stepped form and relationship between buildings in the unaltered group of terraces that extends from numbers 21-29 Hoddle Street. This additional bulk impacts adversely on the principal form of the dwelling, diminishing the intact relationship between the buildings at first floor, and reducing the ability to interpret the historical form of the row of terraces.

51. The proposed development also results in an unacceptable level of overshadowing to the neighbouring courtyard at 31 Hoddle Street.

52. The sum of these impacts results in a proposed development that is inconsistent with the desired future character of the HCA, has an adverse impact on built heritage, and has an adverse impact on adjoining development. These impacts are contrary to the relevant provisions of the WDCP, and further contrary to the relevant aims of the WLEP, and also to the aims of the R2 Low Density Residential zone and on this basis the development should not be granted consent.

53. Accordingly, the appeal is dismissed.

54. The Court orders:

1. The appeal is dismissed.

2. Development Application DA 131/2023/1 for alterations and additions to the dwelling house at 29 Hoddle Street, Paddington, is refused.

3. All exhibits except 3, 4, A, C, E and H are to be returned.

E Washington

Acting Commissioner of the Court

**********

Decision last updated: 19 April 2024