Wedderburn v Woollahra Municipal Council

[2008] NSWLEC 1102

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Wedderburn v Woollahra Municipal Council [2008] NSWLEC 1102

PARTIES:
APPLICANT
Phillip James Wedderburn

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):
11219 of 2007

CATCHWORDS:
Modification Application :- double garage, garage dimensions, heritage impacts.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979,s 97 & s 96M
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 1995
Paddington Development Control Plan 1999

CORAM:
Bly C

DATES OF HEARING:
03/03/2008

EX TEMPORE DATE:
3 March 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr. P O'Brien, solicitor
 of Harris and Company

RESPONDENT
Mr. J. Merlino, solicitor
 of Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

3 March 2008

11219 of 2007                Phillip James Wedderburn v Woollahra Municipal Council

This decision was given extemporaneously.  It has been revised and edited prior to publication.

JUDGMENT

1. In October 2006 the Council granted consent for alterations and additions to the two-storey terrace house at 161 Windsor St, Paddington.  This appeal is against the refusal of the s96 application for the deletion of condition 2(a) of that consent.  This condition requires that the proposed double garage off Paddington Lane at the rear be replaced with a single car space.  The condition was imposed in response to the heritage requirements of Woollahra Local Environmental Plan 1995 and Paddington Development Control Plan 1999.

1. As a result of the advertising of the application, an objection was received from the Paddington Society Inc, expressing concerns that: the width of the garage is excessive and does not comply with the requirements of the DCP.

1. The appeal was conducted under s34 of the Land and Environment Act 1979 but because of an absence of delegated power on the part of the respondent; s.34 (3)(a) was unable to be utilized.  However, following discussion of the issues in contention the parties consented to me disposing of the proceedings in accordance with s. 34(3)(b)(ii). 

1. The issues in contention were discussed at some length between the legal representatives and Mr. G. Patch - heritage architect, Mr. W. Long - town planner and Mr. A Gilderdale - town planner and it became clear that these comprise:

Whether the proposed double garage door would not be sympathetic to the character of the Paddington Heritage Conservation Area taking into account the requirements of the LEP and the DCP.
Whether the length of the garage would be sufficient taking into account the requirements of AS 2819.1.

1. The issue associated with the length of the garage was resolved between the parties when it was discovered that the necessary length as required by AS 2819.1 could be achieved by a relatively minor repositioning of the rear garage wall that would, in turn, have little or no impact on the size of the private open space/courtyard of the house.

1. The heritage issue was also resolved between the parties by the redesign of the proposed garage door.  In reaching agreement the three experts took into account the requirements of the planning controls and the existing built form and character of Paddington Lane and the redesigned the garage door. 

1. The DCP indicates a preference for the provision of vehicle parking at the rear, off laneways as is here proposed.  It also seeks the improvement of the character of laneways by the avoidance of unsympathetic development such as high brick walls and full width garages.  Instead garage designs should provide a balance between car parking and soft landscaping and should ensure that such designs are sympathetic in their massing, form and scale to their historic context and setting.  This can be achieved by the incorporation of elements such as pedestrian gates, timber and transparent fencing.  Garage doors should be of minimal width.

1. Plainly the proposed garage doors do not comply with many of these requirements.  However I accept that the particular circumstances of Paddington Lane are such that strict compliance with the provisions of the DCP would be unnecessary and indeed unreasonable.  In particular I note the prevalence of garage doors in the lane including a high percentage of garages with double doors and that for the most part these doors are virtually the same width as the allotment of land on which they are situated.

1. In the circumstances I have decided that the appeal should be upheld and the development consent amended in the manner agreed between the parties.

   ___________________

   T A Bly
   Commissioner of the Court

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