Wright v Woollahra Municipal Council

[2020] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wright v Woollahra Municipal Council [2020] NSWLEC 1357

Hearing dates:

6 August 2020

Date of orders:

12 August 2020

Decision date:

12 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1)   The appeal is dismissed.

(2)   Development Application No. 365/2019/1 for alterations and additions to the existing dwelling to convert a front bedroom into a garage, is refused.

(3)   The exhibits, other that Exhibits 2 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to a building identified as contributory to a heritage conservation area – detrimental impact on the heritage significance of the heritage conservation area

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Woollahra Local Environmental Plan 2014

Cases Cited:

Goldin v Minister for Transport (2002) 121 LGERA 101

Kovacs v Council of the City of Sydney [2020] NSWLEC 1258

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254

Texts Cited:

Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

Glenn Wright (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
M Harker (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/399164

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 365/2019/1 for alterations and additions to the existing dwelling house to convert the front bedroom into a single garage, including a new driveway and crossover from Cliff Street (the proposal) at 22 Cliff Street, Watsons Bay (the site) by Woollahra Municipal Council (the Council).

2. The appeal was subject to conciliation on 6 August 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act1979 (LEC Act). As agreement was not reached during the conciliation conference, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The hearing was held via Microsoft Teams.

3. Leave was granted by the Court on 30 June 2020 for the applicant to amend the application to rely on an amended proposal (Ex B).

Issues

4. The Council contends that the proposal will not retain the significance of the contributory item on the site and will have an unacceptable impact on the significance of the Camp Cove Village Precinct and the Watsons Bay Heritage Conservation Area (Watsons Bay HCA).

Planning framework

5. The site is zoned R2 Low Density Residential pursuant to Woollahra Local Environmental Plan 2014 (LEP 2014). The objectives of the R2 zone, to which regard must be had, 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.

6. The aims of LEP 2014 include to conserve built and natural environmental heritage, at cl 1.2(2)(f).

7. The site is located within the Watsons Bay HCA (Sch 5, Pt 2, cl 14 of LEP 2014). The site is within the vicinity of heritage items at 11, 12, 14, 15, 16 and 17 Cliff Street (Sch 5, Pt 1 of LEP 2014, items 421, 422, 423, 424, 425, and 426).

8. Clause 5.10(2)(a) of LEP 2014 is in the following terms:

(2) Requirement for consent Development consent is required for any of the following—

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)—

(i) a heritage item,

(ii) an Aboriginal object,

(iii) a building, work, relic or tree within a heritage conservation area

9. Clause 5.10(4) of LEP 2014 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the area concerned, before granting consent under cl 5.10 in respect of a heritage conservation area.

10. Woollahra Development Control Plan 2015 (DCP 2015) includes the following definitions:

“Contributory building:

a building that makes an important and significant contribution to the character and significance of the heritage conservation area. It has a reasonable to high degree of integrity and dates from a key development period of significance of a heritage conservation area.

A building which:

• due to its materials, detailing, finishes, scale, form, siting and landscaping makes a positive impact and contribution to the streetscape character and to the cultural significance of the heritage conservation area; and

• due to its materials, detailing, finishes, scale, form, siting and landscaping makes a positive impact and contribution to the streetscape character and to the cultural significance of the heritage conservation area; and

• is from a significant historical period and is highly or substantially intact; or

• is from a significant historical period and is altered yet recognisable and reversible.

Contributory item:

A building, work, archaeological site, tree or place and its setting, which contributes to the heritage significance of a conservation area.

Street front zone:

Comprises the front building elevation and visible roof, front yard, the side boundary fences in the front yard and the street boundary fence.”

11. The site is within the Camp Cove Village precinct (C3.1.7 of DCP 2015). The site is identified as a contributory item (Map 3, C3.1.7 and C3.4.10 of DCP 2015). The statement of significance for the Watsons Bay HCA, at C3.2.3 of DCP 2015, includes the following:

“These phases are demonstrated in the range of building types still present in the area, from moderately scaled fisherman’s cottages…”

12. Key heritage values of the Watsons Bay HCA, at C3.2.4 of DCP 2015, includes evidence of the ‘early fishing village’ and the ‘built character’.

13. Alterations and additions to existing buildings must not adversely affect their heritage value and contribution to the heritage character of the area, at C3.3.5 of DCP 2015.

14. The objectives for car parking and access at C3.3.8 of DCP 2015 include to ensure that on-site car parking and driveways do not dominate or detract from the appearance of existing buildings, new development and the local streetscape.

15. C3.4.10 Precinct K: Camp Cove Village of DCP 2015 includes the following character statement for Cliff Street:

“Variety of housing dating from 19^th century to early-mid 20^th century, including single storey brick and early weatherboard cottages with pitched roofs. Many have very small to negligible setbacks from street with low fences that contribute to the historic townscape.”

16. The townscape controls for Precinct K include, at C10, that garages on the street frontage are not be permitted as they would detract from the streetscape appearance of houses and the historic townscape character.

17. C3.6 of DCP 2015 includes objectives for contributory items, as follows:

“O3 To ensure that the contributory single storey dwellings/cottages throughout the area, particularly the weatherboard cottages, are retained as contributory items that also enhance the character and village scale of Watsons Bay.”

Description of the site and the proposal

18. The site has an area of 245sqm and contains a single storey, Edwardian, modest cottage clad in timber weatherboards, with a hipped metal roof and a prominent gable over the front room facing the street. The front setback is less than 2m.

19. Approved alterations and additions to the dwelling are currently under construction, including a two-storey rear addition (Ex 1, tab 17).

20. The proposal is to convert the existing front bedroom of the cottage into a garage, by creating a custom operable lift panel in the gabled front elevation clad in matching weatherboards with a pair of double hung front windows in the operable panel with shutters behind the sashes. The proposal includes a timber picket inward opening gate matching the detailing of the existing front fence and a new crossover and driveway. The proposal includes internal alterations to relocate an existing timber framed wall and a concrete slab for the floor of the garage.

Expert evidence

21. The applicant relied on the expert heritage evidence of James Phillips and the Council relied on the expert heritage evidence of Charlotte Simons. The experts gave oral evidence and prepared a joint report, admitted into evidence as Ex 4.

22. The experts agreed that the cottage is a modest, weatherboard cottage that dates from a key period of development of the Watsons Bay HCA and is contributory to the heritage significance of the Watsons Bay HCA. Mr Phillips noted that the site is not identified as a heritage item.

23. The experts agreed that the amended proposal represents the minimum amount of change to the existing cottage required to achieve on-site parking.

24. The experts agreed that when the operable panel in the front gabled elevation of the cottage is in an open position, the garage door will read as a garage door and will result in an adverse visual impact on the appearance and character of the weatherboard cottage. Mr Phillips noted that the garage door would only be open for approximately 8 minutes a day.

25. The experts disagreed on the impact of the proposal on the heritage significance of the Watsons Bay HCA.

26. According to Mr Phillips, the proposal will have little or no impact on the original fabric to the front elevation as it maintains the scale and character of the dwelling and the streetscape character. Mr Phillips noted that 9 dwellings in Cliff Street have on-site parking within the street-front zone and the proposed garage is behind the street-front zone because it is behind the front façade of the existing cottage. In his view, the proposal has been carefully designed to conceal the garage when the panel door is closed and it is a far more discrete means of on-site parking than any of the dwellings with on-site parking in Cliff Street, other than 29 Cliff Street.

27. 29 Cliff Street is a contemporary, infill cottage with a garage concealed behind glazed doors and gates which form part of the front fence. In Mr Phillips opinion, this is an example of on-site parking which exists in harmony with the historic streetscape and complies with the relevant controls in DCP 2015. In his view, the proposal will have a similar level of impact to that of 29 Cliff Street. In Ms Simons opinion, this example is not comparable because the dwelling is an example of infill development within the Watsons Bay HCA.

28. According to Ms Simons, the weatherboard cottage is a significant building type within the Watsons Bay HCA and the Camp Cove Village precinct contains the highest concentration of timber weatherboard cottages in the Watsons Bay HCA. The intactness and conservation of contributory items within the precinct supports the overall significance of the Watsons Bay HCA. In her view, the proposal will have an adverse impact on the appearance and character of the contributory item, while the non-traditional operable wall panel to the front gabled elevation to the cottage is in use.

29. Ms Simons noted that the 10 contributory items in Cliff Street remain largely intact and significantly, only one has on-site parking and this consent pre-dated DCP 2015. In her opinion, the proposal should not take its cues from existing on-site parking in the front setback of dwellings in the vicinity of the site. She disagrees that the proposal is not within the street-front zone, because the street-front zone includes the front building elevation. In her opinion, the proposal alters the front elevation of the cottage and results in an adverse visual impact to the front building elevation when the panel door is open.

30. In Ms Simons’ view, the significant front elevation of the dwelling will be changed by the proposal and the ability to appreciate the front elevation will be lost during the times the panel door is open. In her opinion, the proposal gives preference to the provision of on-site parking over the conservation of the principal building from of the contributory item and would result in adverse modification of the fabric and the use of the cottage.

31. The experts disagreed on the significance of the internal changes proposed to the cottage.

32. Mr Phillips noted that a timber floor could be provided over the concrete slab that will form the floor of the garage and this could be achieved by imposing a condition on the consent.

33. Ms Simons noted that the proposal would alter the original layout of a primary room to the principal building form. In her opinion, the proposal is a new and incompatible use for the front bedroom and will entail the removal of internal fabric, including the existing internal wall and floor of the bedroom. She noted that only the front two rooms and the overall form of the cottage are retained by the approved works currently under construction and this proposal will further erode the amount of original or early fabric to be retained and the layout of the cottage. According to Ms Simons, the significant fabric of a contributory building extends to beyond its shell to the fabric and layout of the building and the interior of the dwelling is also a component that contributes to the heritage significance of the Watsons Bay HCA.

Applicant’s submissions

34. The applicant submitted that pursuant to cl 5.10(2)(a)(iii) of LEP 2014, only the alterations and additions to the exterior of the building within the heritage conservation area require development consent and, as a consequence, the provisions of DCP 2015 that suggest that the interior fabric of the dwelling is significant should be read down and little weight given to those provisions. In support of this submission, the applicant cited Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 at 272 in relation to the principle that less weight should be given to a development control plan which brings about an outcome which conflicts with other policy outcomes adopted at a State, regional or local level.

35. The applicant submitted that the critical question in this matter is what significance the item contributes to the Watsons Bay HCA and not whether the item itself has any intrinsic value. Contributory buildings are to be considered only in so far as the development may impact upon the contribution that the building makes to the heritage conservation area. The correct approach, consistent with not only the LEP and the DCP, but also the Burra Charter (Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013) is to determine what is to be conserved and whether the impacts on that which is to be conserved are, on balance, acceptable. In support of this submission, the applicant cited Kovacs v Council of the City of Sydney [2020] NSWLEC 1258 at [82]-[83] and [92] and submitted that the four questions posed by the applicant in Kovacs at [82] and adopted in the decision are appropriate to the determination of this appeal.

36. The applicant submitted that granting consent to the proposal will not create a planning precedent, because the proposal does not meet the test for being a planning precedent, as set out by Lloyd J in Goldin v Minister for Transport (2002) 121 LGERA 101 at 111.

37. The applicant submitted that it is a matter of common knowledge that the locality of Watsons Bay is in high demand for on-street parking and there are a number of references in DCP 2015 regarding the high demand for on-street parking by residents and visitors to the area.

Consideration

38. I do not accept the applicant’s submission that only the alterations to the exterior of the building within the heritage conservation area requires development consent and so I should disregard, or “read down”, the relevant provisions in DCP 2015 regarding the internal fabric of a building in a heritage conservation area. The applicant has opted to lodge a development application for the proposal, which includes internal alterations and additions, and appeal the Council’s decision to refuse consent. The Court’s role is, in exercising the functions of the consent authority, to determine the development application pursuant to s 4.16(1) of the EPA Act. Whether or not the applicant could obtain a Complying Development Certificate for the internal works of the proposal is irrelevant to my consideration of this application.

39. I do not accept the submission that I am to disregard anything in DCP 2015 that points to the internal fabric of a contributory building in a heritage conservation area being of significance because the submission was sweeping and no specific provisions of DCP 2015 were cited as being inconsistent with cl 5.10(2)(a)(iii) of LEP 2014.

40. I do not accept the applicant’s submission that I should adopt the four questions posed by the applicant in Kovacs. Those questions are not appropriate to determine this matter because they do not contemplate that the proposed development may be unacceptable, despite being “minimised”. The experts agreed that the proposal, as amended, represents the minimum amount of change to the existing cottage required to achieve on-site parking and despite this, the Council still pressed the contention that the proposal has an unacceptable impact on the significance of the Camp Cove Village precinct and the Watsons Bay HCA. The question in this appeal is therefore confined to whether the effect of the proposed development on the heritage significance of the Watsons Bay HCA is acceptable.

41. I accept the applicant’s submission that the Watsons Bay locality is in very high demand for on-street parking by both residents and visitors, particularly during the summer months by visitors, and that on-site parking for residents in the Watsons Bay area is highly desirable and valuable. I also accept the applicant’s position that the proposed operable panel may only be used infrequently.

42. I accept and prefer Ms Simons’ evidence. The proposal seriously erodes the intactness and the integrity of the original weatherboard cottage and by doing so, the proposal diminishes the collective cultural significance of the Watsons Bay HCA. The proposal disregards the constraint of retaining the original weatherboard cottage on this site, because the proposal disrespects the fabric and use of the original cottage and thereby erodes its meaning as part of a group of weatherboard cottages that physically represent the early development of the suburb.

43. I accept and adopt Ms Simons’ evidence that the significance of the Watsons Bay HCA is not confined to the “shell” of those original and early buildings that date from the key period of development of Watsons Bay. The degree of intactness of each contributory building within a heritage conservation area contributes to the collective significance of a heritage conservation area. The objectives and controls for development in the Watsons Bay HCA identify more than the streetscape façade of contributory buildings as being part of the cultural significance of the suburb. This does not preclude sympathetic alterations and additions to contributory buildings with appropriate massing, scale, proportions, materials and details.

44. Despite the proposal’s attempt to camouflage the garage when the operable panel is closed by cladding the panel door in timber weatherboards and inserting a matching pair of double hung windows and internal shutters; the gates, the driveway and the appearance of the panel would make the adaptation of the front bedroom to a garage discernible. The experts agreed that the operable panel in an open position will read as a garage door and will result in an adverse visual impact on the appearance and character of the weatherboard cottage. The proposal changes the nature of the front setback to the cottage and would diminish the contribution made by this timber weatherboard cottage and its setting to the collective cultural significance of the streetscape, the precinct and the Watsons Bay HCA.

Conclusion

45. The alterations and additions proposed to the contributory building adversely affects its heritage value and therefore its contribution to the heritage character of the area. The proposal must be refused because it would detrimentally impact on the heritage significance of the Watsons Bay HCA by diminishing the collective cultural significance of the group of original and early timber weatherboard cottages in Cliff Street, in the Camp Cove Village precinct and in the Watsons Bay HCA.

46. The proposal does not ensure that the contributory single storey cottage is retained as a contributory item that also enhances the character and village scale of Watsons Bay, contrary to objective O3 of C3.6 of DCP 2015, because the proposal erodes the degree of intactness of the contributory building.

47. The proposal does not conserve the significant fabric of the contributory building, contrary to objective O2 of C3.2.5 of DCP 2015. The proposal undermines the key heritage values of the Watsons Bay HCA, contrary to objective O3 of C3.2.5 of DCP 2015. The proposal does not ensure the retention of the character of the precinct and streetscape, contrary to objective O3 of C3.3.2.

Orders

48. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 365/2019/1 for alterations and additions to the existing dwelling to convert a front bedroom into a garage, is refused.

3. The exhibits, other that Exhibits 2 and A, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 12 August 2020