Tedesco v Woollahra Municipal Council
[2016] NSWLEC 1202
•27 May 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Tedesco v Woollahra Municipal Council [2016] NSWLEC 1202 Hearing dates: 26-27 May 2016 Date of orders: 27 May 2016 Decision date: 27 May 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions see [56]
Catchwords: DEVELOPMENT APPLICATION: Alterations and additions to a heritage item; setbacks; visual and acoustic privacy Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 2014Cases Cited: Zhang v Canterbury Council [2001] NSWCA 167 Category: Principal judgment Parties: Aini Tedesco (Applicant)
Woollahra Municipal Council (Respondent)Representation: Applicant: Mr G Green (Solicitor)
Solicitors:
Respondent: Ms M Hawley (Solicitor)
Applicant: Pikes & Verekers Lawyers
Respondent: Lindsay Taylor Lawyers
File Number(s): 151752 of 2016
Judgment
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COMMISSIONER: The applicant appeals Woollahra Municipal Council’s refusal of a development application for alterations, additions and associated works to a dwelling and land located at 13 Cove Street, Watsons Bay (the site).
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The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The matter commenced on site with a mandatory conciliation under s 34AA(2)(a) of the Land and Environment Court Act 1979 (Court Act). As council officers did not have the delegation to enter into an agreement under s 34(3) of the Court Act, the conciliation was terminated and the parties consented to me determining the matter on the basis of what occurred at the conciliation conference in accordance with s 34AA(2)(b)(ii) and on the materials filed with the Court.
The site and its locality
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13 Cove Street, Watsons Bay is on the eastern side of Cove Street and is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP).
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The site is within the Camp Cove Precinct of the Watsons Bay Heritage Conservation Area (WBHCA) and the two storey weatherboard dwelling on the site, including the interior, is listed as a heritage item of local significance under WLEP.
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According to the Statement of Environmental Effects incorporating the Statement of Heritage Impact (SEE/SHI) filed with the development application, the dwelling was constructed in 1882. It is of simple rectangular shape with a corrugated iron hipped gable roof and close eaves. The front door opens almost directly onto the street and is accessed via two steps up from the street. The front façade features four simple sash windows and the front door, the two on the upper level with shutters; the rear façade generally replicates this form.
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The interior of the dwelling, whilst having been altered and renovated over the years, essentially retains the original floor plan. The ground floor comprises the entry foyer with staircase, open plan kitchen, living and dining rooms. The first floor consists of a family room, two bedrooms and a bathroom.
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At the rear of the site in the southeast corner is brick shed used as a laundry. In the backyard are a number of trees and shrubs growing along the south-western and north-eastern boundaries. There is a row of bamboo on part of the south-eastern boundary. There is a tall and visually prominent Washingtonia robusta (Washington Palm) growing towards the centre of the back garden. The yard is part paved and part lawn.
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The site is within a row of five adjoining properties (11-19 Cove Street) which all contain heritage items under WLEP. The adjoining property to the southwest, no. 15, includes a part one, part two storey heritage-listed dwelling; the adjoining property to the southeast is occupied by a single storey heritage-listed weatherboard cottage. To the rear (northeast) is 12A Cliff Street which contains a two storey dwelling.
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Cove Street is characterised by one and two storey cottages with pitched roofs and limited setbacks from the street. Towards the southern end is a row of two storey attached terraces.
The proposal
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Development Application 502/2015 (the DA) lodged with council on 6 October 2015 proposes the following alterations and additions:
Reconfiguration of the internal layout of the cottage at ground and first floor levels.
New two storey addition to the rear elevation of the existing cottage with a new single storey wing, with a flat roof incorporating a roof top garden, adjacent to the southern boundary.
Demolition of the front steps, fixing the front door closed and provision of a new front door on the northern side of the building.
Demolition of the rear shed.
Removal of the Washington Palm and other vegetation and installation of new landscaping including a reflection pool adjoining the south-western boundary.
It is also proposed that elements of the original cottage be restored.
The issues
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Council issued a Notice of Determination refusing the proposed development on 1 February 2016. The reasons for refusal are reflected in council’s Statement of Facts and Contentions. In summary, the key issues are:
Heritage conservation: the proposed changes would adversely affect the historical significance and integrity of the heritage item and be incompatible with the significance of the HCA and the character of the Camp Cove Precinct. Specifically – the removal of the front steps; visibility of the rear additions from the street (given the proposed limited setbacks from side boundaries); no visual separation between the proposed two storey addition and the rear of the original dwelling; unsympathetic materials; and unacceptable alterations to the internal layout of the original dwelling.
Removal of the palm – unacceptable given its visual prominence.
Acoustic and visual privacy arising from: the roof garden – its potential use and access to it; lack of side setbacks; and location of windows and doors close to neighbouring properties.
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Solar access to the adjoining property at no. 11 was later added to the list of contentions.
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Apart from the issues raised by council, a number of written submissions were made by adjoining and other nearby residents; these are included in council’s bundle of documents. Amongst other issues raised in written submissions many go to loss of the integrity of the heritage item as well as the HCA, unacceptable loss of a prominent tree – the palm, unacceptably close setbacks to neighbouring properties, loss of screening, potential property damage should the reflection pool be poorly constructed, privacy and overlooking from the roof terrace and upper storey windows, and potential noise from the use of the proposed roof garden.
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The conciliation conference commenced with several of those who made written submissions giving oral statements (owners of #9 and #11 Cove Street and #12 and #12A Cliff Street at the rear). Two adjoining (#11 Cove, #12A Cliff) and one nearby property (#9 Cove) were visited. Notwithstanding the viewing of amended plans, the issues raised by the residents in oral submissions are summarised as:
Inconsistent with the provisions of Woollahra Development Control Plan in regards to alterations and additions to heritage items including the flat roof of the single storey extension, the projection and aesthetic impact of the proposed concrete awning beyond the building line, the addition of the second storey element at the rear of the original cottage which would obscure an element of the building that can be seen from a wide area, and the alterations of the interior of the cottage. Several residents spoke about the loss of the historical integrity of the building especially given its particular heritage listing and its uniqueness. Their concerns also included the impact on the HCA. A number of residents considered that a pitched roof form for the single storey element would be in keeping with the character of the area.
Privacy impacts arising from the potential for overlooking from the flat roof of the single storey extension and from the upper level windows. Concerns about access to the roof garden and potential future use.
Acoustic impacts on the occupants of no. 11 as a consequence of the openings in the extensive glazing along the south-eastern boundary and the existing poor acoustic qualities of the weatherboard structures.
The overshadowing of no. 11 and the potential overshadowing of no. 9 Cove Street.
Adequacy of setbacks from the boundary wall between the site and 12A Cliff Street so that the wall can be maintained.
The adequacy of tree protection measures for the Washingtonia as well as potential impacts on a Lophostemon confertus (Brush Box) at the rear of 12 Cliff Street.
General concerns over the type and or height of any landscaping along the north-eastern and south-eastern boundaries as well as the proposed green roof/ roof-top garden.
The assessment framework
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Section 79C(1)(a) of the EPA Act requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
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The relevant environmental planning instrument is WLEP 2014. Also relevant is Woollahra Development Control Plan 2015 (WDCP). The specific clauses are considered in the evidence and the findings.
Conferencing of experts and amended plans
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As is usual in these matters, the parties were directed to file individual and or joint expert reports by an agreed time prior to the commencement of the conciliation. Expert evidence, by way of joint reports, was provided in the fields of planning, heritage and arboriculture. For the purpose of my determination of this matter, the parties rely on these joint reports. In response to the contentions raised by council and objectors and also to matters raised during the joint conferencing, the applicant’s architect prepared revised design concept drawings.
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Following further discussions with the experts, the applicant’s architect prepared amended plans. The amended plans and Schedule of Amendments are attached to the Amended Supplementary Joint Planning Report filed with the court on 20 May 2016. The amended plans increase the setbacks of all structures including the pool from the side and the rear boundaries, retain the front entrance and steps, set the bulk of the second storey addition in line with or behind the existing dwelling and limit any projection to a concrete awning on the north-western side, delete upper storey windows on the south-eastern façade of the second storey addition, reduce the width of the second storey addition, incorporate a glazed space between the rear of the original cottage and the second storey addition, remove an reconfigure a number of internal elements, reduce the size of the pool, reduce the extent of overshadowing of no. 11 Cove Street, remove one rooftop garden and remove the parapet wall from the primary roof garden. The plans were further refined as a consequence of the conciliation.
Heritage
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The parties’ heritage experts – Mr Robert Staas for the applicant and Ms Amelia Parkins, council’s Strategic Heritage Officer, prepared a joint report based on the council’s contentions and the revised concept drawings. Their report also includes extracts from the NSW Heritage Branch listing and WDCP.
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As stated, the cottage and interiors are listed as a heritage item of local significance in Schedule 5 – Environmental Heritage WLEP. Clause 5.10 WLEP concerns Heritage Conservation. The relevant objectives under cl. 5.10(1) are:
(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.
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Subclauses 5.10(2)(a) and (b) specify that development consent is required for any alteration of the external or internal features of an item listed in Schedule 5. Clause 5.10(4) requires the consent authority to consider the effect of the proposed development on the heritage item and or the HCA before granting consent.
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Chapter C3 – Watsons Bay Heritage Conservation Area in Part C – Heritage Conservation Areas of WDCP 2015 applies to the site. The site is identified in Map 2 as being within precinct K – Camp Cove Village. The chapter provides detailed descriptions of the character, heritage significance and values of the overall HCA and the 20 individual precincts which comprise it, as well as detailed development controls.
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The SEE/SHI includes the NSW Heritage Branch Listing of the property. The Statement of significance states:
The northern area of the Watsons Bay Conservation Area is characterised by a group of small cottages and terraces. This weatherboard house is in the middle of the group and remains largely intact with respect to its original floor plan and design. Although not typical of the one storey cottages of the vicinity, the simple character and modest Victorian Georgian style are in keeping with the nearby residences. The construction and location of the house with its verandah directly off the street frontage is reminiscent of the urban centres of old maritime villages. Its context within this historic area of Camp Cove and its modest design for this period in the Sydney area give this house high social and historical significance.
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The recommended management for the item provided in the listing states:
Due to the high integrity of this building in both form and materials, it is therefore recommended that a Heritage Report be required prior to any proposals for alterations. There should be no new work allowed which alter the scale, form, materials, or composition of the building. There should be no enlarging or filling in of window and door openings, and there should be no alterations allowed which alter the internal layout of the building. There should be no additions allowed which would impact on the streetscape unity of the group.
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The Statement of Significance for the Camp Cove Village precinct from WDCP includes the following extracts relevant to the issues raised by council:
Part of the 1855 The Town of Watsons Bay subdivision….This part of the early subdivision has mostly retained its historic townscape character, with low scaled one and two storey detached houses sited on relatively small allotments….
Houses are generally built close to the street, with only small setbacks from front and side boundaries….Trees in the rear yards form a backdrop to the houses when viewed from the streets.
Buildings and groups of buildings that contribute to the character of the precinct date from two key periods: 1850s-1870s and 1910s-1930s. The precinct includes most of the timber weatherboard cottages in Watsons Bay, which is the largest concentration in Woollahra Municipality.
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In the light of the revised drawings, the heritage experts agree that the retention of the front steps and entry remove that issue. They agree that increasing the setbacks to limit the projection of the extensions beyond the existing dwelling addresses the potential impact of the additions on the view from the public domain. They agree that the visibility from the street of the proposed low scale, open, covered awning set beyond the rear of the house would be negligible given the retention of the existing security fence and gate at the front of the site. The experts note that the rear extension is in line with the extensions to the two heritage items on either side of the site and that the removal of the access stairs at the rear is positive.
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In regards to the proposed second storey addition to the rear of the cottage, the heritage experts agree that the two elements will be visually separated by the inclusion of a recessed, glazed slot which clearly defines the original work and the proposed extension – visible from both within and outside the walls. They note that this approach is regularly adopted for additions to heritage items and in their opinion this will not significantly reduce the cultural significance of the item.
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The only heritage issue for which there were any outstanding concerns was the proposed internal reconfiguration. In their joint report the experts agreed that the revised plans maintain significant spaces in the existing house while allowing for appropriate adaptation for continued residential use of the place and that the changes are modest and do not obscure the original character. Ms Parkins notes the remarkably intact internal layout but acknowledged that some compromises could be accommodated to facilitate the residential use of the dwelling while retaining its significance. She suggests the possible use of joinery elements to define new spaces could be acceptable provided some form of interpretation of the original room layout is provided.
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Given Ms Parkins’ concerns, an amended internal layout was prepared and discussed during the conciliation. This was deemed an acceptable compromise. The revised layout incorporates joinery elements which could be removed at a later stage should someone wish to re-establish the original layout. The experts agree that this is an accepted practice.
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In summary, the heritage experts agree that all contentions regarding heritage have been resolved and there are no heritage issues that warrant refusal of the proposed development.
Findings
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I am satisfied on the basis of the amended plans and the agreed position of the heritage experts that the proposed additions and alterations are acceptable and reasonable in the circumstances.
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I am satisfied that the retention of the front door entry and steps and the absence of any changes to the front façade and sides of the original cottage retains its key place in the streetscape and does not detract from or significantly diminish the value or character of the Camp Cove Village precinct or the Watsons Bay Heritage Conservation Area. I agree with the heritage experts, as and discussed below, the planning experts, that the projection of the awning will have a negligible impact on the streetscape when viewed from the public domain of Cove Street and nearby Pacific Street. This also achieves the Heritage Branch recommendation that nothing be carried out to impact the streetscape unity of the group of heritage items.
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In regards to the internal layout, I accept the heritage experts’ opinion that the proposed changes to the internal layout are appropriate in the circumstances of the building being used for residential purposes. The current layout on the first floor requires access to the bathroom through other rooms. The changes replace one wall that has been removed and incorporate joinery items which can be removed. The materials remain unchanged. I accept Mr Staas’ statement that it is clear from remaining pieces of joinery on both the ground floor and the first floor that the internal layout has been altered over the years. In my view the alterations are relatively minor, practical and reasonable.
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A number of residents raised concerns that the addition to the rear of the cottage was counter to the Heritage Branch recommendation. They stated that the rear of the dwelling was visible from a wider area and thus its integrity should be retained. This issue constituted council’s contention 1.5.2. As noted above, the heritage experts have agreed that the inclusion of a glazed and recessed element between the original cottage and the new addition is reasonable in the circumstances. I accept the position of the experts. It was clear from discussions during the conciliation that the experts had spent considerable time discussing and negotiating an acceptable outcome. While I accept that there are filtered views of the rear of the dwelling from some nearby properties, the heritage listing and precinct character statements appear to prioritise the integrity of the building when viewed from the street and its relationship to adjoining and nearby heritage items.
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The residents also stated that the flat roof extension and the choice of materials for the ground floor were unacceptable. They stated that control C23 in C3.4.10 WDCP specifically states that flat-roofed buildings are not permitted. This constituted council’s contention 1.5.3. Following the joint conferencing of both the heritage experts and the planning experts this contention has been satisfactorily resolved and is no longer pressed. The roof form (including the green roof) was discussed during the conciliation. The design intent of the flat roof is to minimise overshadowing of adjoining properties and to reduce its visibility from adjoining properties. The green roof was incorporated in order to blend the roof into the surrounding landscape and to provide additional insulation. It was agreed that the height of any plants on the single storey roof be limited so as to minimise any overshadowing. It was also noted during the conciliation that there are flat roof forms on other nearby buildings.
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In Zhang v Canterbury Council [2001] NSWCA 167 at [75] Spigelman CJ states that a DCP must be considered as a ‘fundamental element’ or ‘focal point’ of the decision making process. While this is the case, I am not required to accept it uncritically. Subsequent to Zhang, s 79C(3A)(b) of the EPA Act requires the consent authority to be flexible in applying the provisions of a DCP.
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Therefore while control C23 in C3.4.10 WDCP prohibits flat roofs, I am prepared to accept the reasoning behind the incorporation of flat roof forms into the rear of the site and apply the control flexibly in the circumstances. With respect to the materials, the upper side portions of the second storey addition extend the weatherboard. There will be a fixed metal privacy screen on the rear façade of the upper storey however this was deemed appropriate for privacy reasons. The vast majority of the glass and concrete construction of the new ground floor extension will not be visible from the public domain and will mostly below fence height. The choice of materials clearly differentiates the new addition from the original cottage.
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Therefore in accordance with cl. 5.10(4) of WLEP I have considered the effect of the proposed development on the heritage significance and the area and have found that it reasonably achieves the relevant heritage objectives in cl. 5.10(1) and there are no remaining heritage grounds that warrant refusal of the proposal.
Planning
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Planning evidence was provided by Mr Gary Shiels for the applicant and Ms Lauren Samuels, council’s Senior Assessment Officer. The planners prepared three joint reports in order to address the changes to the original proposal and the findings of other experts. The planners addressed the issues of setbacks and building alignment, acoustic and visual separation, and overshadowing.
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The planners agree that apart from the awning, the setback of the building from the north-western boundary of 1.940 m complies with the 1.2m side setback control C19 in C3.4.10 WDCP and its alignment no longer makes it visible from the street. While the south-eastern side setback of the new addition is 900mm rather than 1.2m from the dividing fence, the planners have raised no issues with the non-compliance. I note that the setback has been increased from the original proposal. The rear setback has been increased to 1.15m.
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In their first joint report, Ms Samuels pressed her concerns about the accessibility of the roof terrace and potential privacy and acoustic impacts arising from its use. She notes that WDCP identifies that roof terraces are not characteristic of Watsons Bay. Mr Shiels opined that acoustic and privacy measures could be achieved through possible screening.
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In their subsequent reports after further amendments to the plans, the planners agree that the removal of the stairs at the rear of the site, the lowering of the parapet height, and designation of the roof garden as non-trafficable except for maintenance, will eliminate the acoustic and privacy concerns. While some residents raised the issue of potential access to the terrace from the second storey addition, it was clarified during the conciliation that the fixed privacy screen will prevent any access to the roof top from the adjoining bedroom. It was agreed that the plans clearly identify the privacy screen as ‘fixed’.
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During the conciliation, the parties had the benefit of viewing the site from the adjoining property to the southeast – no. 11 Cove Street. While the amended plans have reduced the degree of overshadowing, there will be some additional overshadowing of the adjoining property at 11 Cove Street as a consequence of the proposed development. The reduction of the parapet of the single storey element has resulted in a minor improvement to solar access to the rear courtyard of no. 11. The majority of the additional overshadowing is over the north-western corner of the rear of the cottage which from the site inspection is a bedroom and a small covered verandah plus a small portion of nearby courtyard. Therefore the additional overshadowing is not to the principal living room or most of the private open space. The site inspection indicated that that portion of no. 11 is likely to be shaded by the bamboo growing along part of the common boundary. The plans also show that there will be no overshadowing of #9 as a consequence of the development.
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Apart from overshadowing, the owner of no. 11 expressed a number of concerns, some of which have been addressed in the determination on heritage grounds. In regards to planning matters, the owner of no. 11 stated that she was very concerned about the acoustic impacts arising from the proposed design of the ground floor extension along and close to the common boundary. While she appreciated the increased setback from the fence, she stated that a wall of glass doors opening onto the common boundary would exacerbate the acoustic inadequacies of the existing weatherboard cottages by exposing her rear courtyard and kitchen area to noise from the proposed family room.
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During the conciliation between the parties I raised this very legitimate concern. It was agreed that the ground floor portion of the two storey addition, the portion closest to the adjoining bedroom, be modified to replace the proposed glass sliding doors with a solid weatherboard wall incorporating acoustic insulation and that the other sliding glass doors be limited in number and confined towards the central and northern part of the wall. This compromise will retain some cross-ventilation but limit the acoustic impact on no. 11.
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Having considered the joint reports, the amended plans and with the benefit of the site inspection I am satisfied that there are no planning grounds which warrant the refusal of the proposal.
Arboriculture
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The arborists, Mr Peter Castor for the applicant and Mr Andrew Simpson for the council agree that the Washington Palm is significant in the streetscape. The design and method of construction have been altered to increase the setback from the palm and to enable its retention. The arborists prepared a condition of consent detailing the setbacks and the relevant tree protection measures. At the request of the Court, these measures are to be incorporated into the Construction Management Plan.
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I am satisfied that the measures proposed by the arborists will enable the successful retention of the tree; this resolves council’s contention. In response to concerns raised by a resident about any future removal of the tree, it is reasonably assumed that the tree is covered by Woollahra Council’s tree preservation controls detailed in cl. 5.9 WLEP.
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During the submissions made by the residents, the owner of 12 Cliff Street drew the parties’ attention to a mature Brush Box located in the western corner of her property and very close to the eastern corner of the site. This tree was not assessed by the arborist, Ms Lee Hancock, who prepared the Development Impact Assessment included with the DA and nor were any concerns raised by council.
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The tree adjoins a portion of the site which is occupied by a brick shed with a concrete floor. With the arboricultural and horticultural expertise I bring to the Court, I consider that the tree (which is in moderate health) and the shed have co-existed for many years. The amended plans show that the shed will be removed and the proposed extension will be set back further from the north-eastern boundary thus providing some additional opportunity for root growth. The proposed floor levels in the vicinity of the tree are close to the existing floor level of the shed and therefore the risk of damage from excavation should be minimal however, a condition should be included to ensure that any excavation in the vicinity of this tree is supervised by the project arborist and any footing design amended if required.
Other concerns
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Either in the original written submissions or made orally during the conciliation, adjoining residents raised the issue of the proposed landscape treatment of the common boundaries. In order to attempt to meet the requests of neighbours, a condition of consent was imposed to set minimum and or maximum heights of vegetation along those boundaries and to limit the height of any plants on the green roof. Condition C.1(e) requires the preparation of an amended landscape plan in accordance with council’s DA guide and on the basis of the agreed outcome of the conciliation.
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In a supplementary written submission, the owners of no. 15 Cove Street raised a number of concerns, some of which have been discussed elsewhere in this judgment. New concerns include: the current location of the dividing fence and its encroachment onto their land and location of gas and water meters for no. 15; privacy and drainage impacts arising from the location and use of the proposed outdoor shower; and unclear details regarding the depth and operation of the pool.
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The amended plans indicate a “new fence with timber paling cladded blueboard” along part of the common boundary and enclosing the outdoor shower, kayak rack and bins storage area. It would seem unlikely that an outdoor shower would be in constant use and thus lead to privacy impacts. The conditions of consent require a further suite of documentation including Construction Certificate plans and specifications which must include detailed engineering plans and/ or specifications for all structural, electrical, hydraulic, civil and other specified work. Other conditions of consent specifically deal with the construction, operation and maintenance of the pool. Another standard condition of consent deals with dividing fences. It must be reasonably assumed that all development will be carried out in accordance with conditions of consent and thus be compliant with all relevant codes, standards and regulations.
Conclusion and orders
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In accordance with s 79C of the Act, having considered the contentions raised by the council, the relevant planning controls, submissions made by objectors, the expert evidence and the matters discussed during the conciliation I am satisfied that the proposed development can be approved subject to conditions of consent.
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As a consequence, the Orders of the Court are:
The applicant is granted leave to rely on the amended plans in Annexure A.
Pursuant to s 97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent’s costs thrown away as agreed or assessed.
The appeal is upheld.
Development consent is granted to Development Application 502/2015 for alterations and additions to the existing cottage including landscaping of the site at Lot 17 in DP 745259, otherwise known as 13 Cove Street, Watsons Bay in accordance with the conditions of consent in Annexure B.
The exhibits except A, B and 1 are returned.
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Judy Fakes
Commissioner of the Court
151752.16 Annexure A amended plans (4.43 MB, pdf)
151752.16 Annexure B conditions (318 KB, pdf)
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Decision last updated: 27 May 2016
Tedesco v Woollahra Municipal Council [2016] NSWLEC 1202
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