Woodfield Retirement Village v Ashfield Council [No 2]

[2004] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION:	Woodfield Retirement Village v Ashfield Council [No 2] [2004] NSWLEC 223
PARTIES:	APPLICANT Woodfield Retirement Village RESPONDENT Ashfield Council .
FILE NUMBER(S):	11223 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	4 May 2004
DATE OF JUDGMENT:	05/11/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso, barrister INSTRUCTED BY Wilshire Webb RESPONDENT Mr S Griffiths, solicitor Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Matter 11223 of 2003

Moore C

11 May 2004

Woodfield Retirement Village

Applicant

v

Ashfield Council

Respondent

Supplementary Judgment

1 During the course of the short hearing on 4 May 2004 to finalise this application, I indicated that I would provide short supplementary reasons on three matters which I determined during the course of that hearing.

2 The first of them related to the proposal by the council’s expert town planner, Mr Moody, that Ward 24 be deleted.

3 The second related to the question of whether or not Mr Moody’s proposal for the deletion of the bathroom and the cleaners’ storage area in the south-western corner on the first floor should be adopted.

4 The third is why I was not prepared to accept Mr Wilson’s proposal, for the applicant, that external blinds should be permitted in the north-western corner attached to the preserved heritage structure as a substitution for the veranda awnings which I had required to be deleted in my original decision on the matters of principle involved in the application.

5 The first two matters are, in many respects, interdependent.

6 To appreciate my reasoning, it is, perhaps, appropriate that I deal with the second of the matters - that is the requested changes at the first floor - prior to dealing with that concerning Ward 24, as it gives a context to understanding that issue.

7 In the revised plans, on the south-western corner at first floor, significant changes were effected as a consequence of my original decision. They have the effect of "pulling back", at the first and second floors, that corner of the building.

8 Mr Moody considers that these changes provide considerable positive benefits for the residence of Brunswick Street in the vicinity of southwestern corner of the building. However, he proposes that the eastern wall of the first floor be moved, in this corner, further to the east by deleting the cleaners’ room and by halving the space available for the bathroom.

9 It was Mr Wilson’s evidence that the bathroom was a regulatory requirement and that it was not possible to relocate it elsewhere in the facility. Mr Wilson, however, considered that removal of the cleaners’ room would be able to be accommodated, elsewhere in the premises, albeit with some difficulty. He also express the opinion that the amendments sought by Mr Moody would have the effect of instating an unarticulated wall at that level along the western side of the building.

10 Mr Moody considered that the retention of the bathroom but the deletion of the cleaners room would provide some benefits to the presentation of the building and would retain a degree of articulation. His concern remained the dominance of that corner of the building.

11 I am satisfied that it is not appropriate to require deletion of the bathroom for the reasons articulated by Mr Wilson. However, I am satisfied that the positive benefits to be obtained, by the deletion of the cleaners’ room, outweigh any difficulty which might be occasioned to the applicant by relocation of those facilities to some other face in the premises.

12 It is in the context of the determination of the above element that I have considered the retention or otherwise of Ward 24.

13 Mr Moody says that the presentation of an unbroken wall (containing no doors or fenestration), by Ward 24, towards No. 26 and 27 Brunswick Street, is unacceptable.

14 However, two matters have intervened since Mr Moody expressed that opinion which, in my assessment, require to be taken into account in responding to his concern.

15 First is the determination I have made, as outlined earlier in these supplementary reasons, to require a further modest setting back and degree of articulation to the south-western corner at the first floor.

16 Second is the agreed change to the nature of the balustrading to the walkway on the western side of Ward 24.

17 Mr Moody had, in my assessment quiet properly, raise concerns of the unrelieved nature of the retaining wall and solid balustrade structure at the western edge of the property adjacent to the patio outside Ward 24. The applicant has accepted a suggestion that this 1.8 m high solid balustrading should be replaced with 1.5m high obscure glass balustrades consistent with the balustrading to the patio on the southern side of the ground floor of the property.

18 I am satisfied that the combination of the additional articulation and further modest setback at the first level when coupled with the change to the ground floor balustrading, will provide sufficient perception of textural change as the development would then be read from No. 26 & 27 Brunswick Street to rendered it, on fine balance, a design response which was acceptable – although one which is marginally so.

19 Little needs to be said with the respect to Mr Wilson’s proposal that blinds should be permitted on the western face of the heritage structure in substitution for the veranda treatment which I had require to be deleted. There may have been some validity in the argument (which I did not, in the final analysis, as evident from terms of my earlier decision, find persuasive) that a veranda treatment as proposed was sympathetic with the heritage item. This could not possibly be said for any proposed external awning style of structure.

20 If there is a need to preserve the amenity of the users of that portion of the heritage structure from, for example, westerly sun, the appropriate design response for that is as a part of the interior fit out by blinds, curtains, vertical drapes or the like.

21 The external element envisaged by Mr Wilson would be entirely alien and unacceptable.

Commissioner of the Court