Young v Woollahra Council

[2013] NSWLEC 1125

Land and Environment Court

New South Wales

Medium Neutral Citation:	Young v Woollahra Council [2013] NSWLEC 1125
Hearing dates:	10 & 12 July 2013
Decision date:	16 July 2013
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See paras 30 - 32
Catchwords:	Development application, infill dwelling, heritage, bulk, scale, height, design
Legislation Cited:	Land and Environment Court Act 1979; Woollahra Local Environmental Plan 1995; Environmental Planning and Assessment Act 1979
Texts Cited:	Paddington Heritage Conservation Area Development Control Plan 2008
Category:	Principal judgment
Parties:	Robin Young (Applicant) Woollahra Council (Respondent)
Representation:	Solicitors Mr G Christmas Apex Law (Applicant) Mr S Patterson Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10348 of 2013

Judgment

1. Mr Young lodged Development Application 405/2012/1 with Woollahra Council on 21 September 2012 seeking consent to construct a three storey dwelling house at No. 3 Kidman Lane, Paddington. The council refused consent on 22 April 2013 and he is appealing that decision.

1. The council's reasons for refusal form the contentions in the case and relate to the bulk and scale of the development, impact of a proposed roof terrace on surrounding properties, extent of excavation and impact on a tree, streetscape and heritage impacts and internal amenity.

1. The matter commenced as a conciliation conference which was conducted in a cooperative manner by all involved however, despite sketch plans proffered by the applicant addressing the majority of contentions, those plans did not provide sufficient detail and certainty for the council to enter into any form of agreement. For that reason the conference was terminated and a hearing held forthwith as required under s34AA (2)(b) of the Land and Environment Court Act 1979. The parties agreed that the discussions and evidence from the conciliation conference could be evidence in the hearing.

The site and its context

1. The site comprises Lots C and D in DP 182028 and is located on the eastern side of Kidman Lane, Paddington at its intersection with Hopewell Lane. The site is irregularly shaped and has an area of 151sqm. Lot D is a right-of-way that provides pedestrian access to two lots to the immediate east of the site, Nos 10 and 12 Hopewell Street, and runs along the northern side of the site and turns in a southerly direction along the eastern boundary to the northern boundary of No 10.

1. The site contains the remnants of a cottage that was recently demolished. The laundry and bathroom of that structure remain on site. The land is relatively flat and slopes from the rear to the street.

1. Development in the locality comprises a mixture of residential and commercial development of varying styles, sizes and heights. To the immediate north of the site is a single storey dwelling, to the south is a single storey dwelling with an attic room, two storey dwellings to the rear and a mix of single and two storey dwellings to the west of the site.

1. The site is within the Paddington Heritage Conservation Area.

Background and the proposal

1. The original application proposed a part 2 and part 3 storey dwelling house with a one and a half car garage erected to the street front, a terrace on its roof and the main dwelling behind. That dwelling was to be erected on the southern boundary of the site, a minimum setback of 740mm from the rear boundary and to the boundary of Lot D, the right-of-way.

1. In response to notification of the application, the council received a number of objections to the proposal. Those relevant to the proceedings are the height, bulk and scale, setbacks, street presentation, character and siting and formed the basis of the council's decision to refuse consent.

The issues

1. The issues before the Court were the design and context of the dwelling, its location on the site, height, bulk and scale and potential to impact on a large tree located in the rear yard of No 10 Hopewell Street and the suitability of the design of the building in the context of the Paddington Heritage Conservation Area.

Planning Controls

1. The site is in Zone No 2 (a) - (Residential "A" Zone) under Woollahra Local Environmental Plan 1995 (LEP). That plan includes a number of aims and objectives (clause 2) and zone objectives (clause 8). Part 4 contains heritage provisions with clause 27 and 28 particularly relevant to the application.

1. Paddington Heritage Conservation Area Development Control Plan 2008 also applies to the site.

The evidence

1. The matter commenced on site with a view of the locality and adjoining residences. Evidence was heard from a number of residents who reiterated the concerns raised in their submissions to the council in relation to design, scale, height, location of terrace, impact on adjoining properties and character. The tree the subject of concern to a number of residents was also observed.

1. The owner of the dwelling to the immediate south of the site (No 2 Hopewell Lane) had concerns in relation to the need to retain access for maintenance of the sidewall of his dwelling and a vent in its side wall. The owners of land benefited by the right-of-way objected to the proposal to introduce stairs within the accessway, saying the primary purpose of the access is to allow for transporting garbage bins and other heavy goods and for tradesman undertaking works within their property who utilise bulky equipment. They advocated a reduction in building height to provide additional sunlight to their yard and dwelling so as to offset the shade cast by the large tree within the yard of No 10.

1. Expert evidence was presented by:

Area of expertise Applicant Council

Town Planning T Moody K Nash

Heritage A G Patch R Moore

Arboriculture A Anderson

1. All experts, other than Mr Anderson, participated in the conciliation conference and the input from that process led to the preparation of sketch plans, Exhibit F in the proceedings. Those plans make significant changes to the design and siting of the development however do not provide any detail of the internal layout of the building, room sizes, fenestration, materials or colours.

1. The main changes made to the proposal, in response to the council and resident concerns and agreement between experts were:

• Deletion of the garage and rooftop terrace;
• Provision of a single carspace and reduction in ground floor footprint;
• Provision of a landscaped courtyard and front setback area;
• Lower front fence where garage wall was originally proposed;
• Provision of a 1300mm wide verandah to the first floor front elevation with side blade walls to address privacy concerns;
• Provision of a 600mm setback to the southern boundary to facilitate access for maintenance to the adjoining dwelling house;
• Reduction in ridge height by 800mm and rear parapet wall height by 2.8m;
• Design change so third level is now room within the roof with two 1.2m wide dormer windows and changed roof pitch to reduce bulk and overshadowing impacts;
• Rear wall to be straight and height to match gutter height of No 2 Hopewell Lane;
• Right-of-way maintained at existing levels;
• Ground floor level lowered by 300mm;
• Deletion of skylight to front elevation and relocation to rear.

1. The council distributed the sketch plans to the objectors who had attended the site view. Email replies were provided to the council and tendered as Exhibit 9. One resident gave further evidence in Court.

1. The changes made were generally well received and the representative of the Paddington Society who stated that there was a "considerable improvement shown in the proposed amendments" acknowledged this. An axonometric sketch of those changes was included in the Society's submission, which helpfully demonstrated the changes made.

1. Despite the extensive changes made by the applicant, some of the objectors, whilst supportive of the main changes made sought further amendments. Those changes would require reduction in building height (by an additional 700mm) to further improve solar access to the dwellings to the east, further increase setback to eastern side to at least 1m to protect tree, deletion of first floor verandah, provide fixed and obscure glazing to dormer windows and deletion of "third" storey. Prior to termination of the conciliation phase, the applicant accepted the suggestion to further increase the setback of the ground floor from the eastern boundary however resisted the other changes sought by the objectors.

1. The heritage and planning evidence provided to the Court in response to the plans was that the general concepts adopted would resolve the contentions in the case. They were not prepared to sign off on those plans because more detail was required in relation to the final internal design, fenestration, materials and the outcome/treatment of the rear section of the building.

Conclusion and findings

1. The amendments made during the conciliation phase have gone a long way to address the contentions in the case. The experts are now satisfied, that, subject to final detail, those contentions have been addressed. The only remaining contention is the issues raised by objectors.

1. In relation to the further changes sought by objectors, I do not consider further reduction in building height it required. The council's planning controls allow for a maximum building height of 9.5m and the height of the building as now proposed would be 7.9m. The evidence of the experts is that the height needed to be reduced so that the building responds to the slope of the land and presents as stepping down that slope. This has been achieved through the amended plans. This factor, as agreed by Mr Nash, will reduce the overshadowing impacts to adjoining properties. I am satisfied that the height of the building now proposed would be consistent with the objectives of the council's planning controls. It is not appropriate to further reduce the height of the proposed dwelling to compensate adjoining properties for the impacts of a significant tree.

1. The proposed upper floor verandah has a width of 1.3m. That is consistent with the character of verandahs within the locality and the broader conservation area. The heritage experts consider it to be an important element in the design of the building and I am satisfied that it will be no different to use of similarly sized verandahs within the locality and will not cause adverse acoustic and amenity issues. The provision of the blade walls to each end of the verandah, its size and its separation from adjoining properties will provide adequate privacy protection. Similarly, as agreed by the planners, the small size and location of the two dormer windows is satisfactory, is in line with the adjoining dormer windows at No 2 Hopewell and sufficiently separated from its front courtyard to address privacy concerns. I do not consider that these windows should contain obscure glass or be fixed. They are windows to a bedroom and need to provide adequate light and ventilation to that room.

1. I do consider that a further setback should be provided to the eastern boundary to protect the large tree near that boundary. This is particularly important given the extent of excavation required. For that reason, the building should be setback a further 1m, the rear wall in that location should be straight and any upper floors supported by end columns. No excavation should occur between that rear wall and the rear boundary and consent conditions should be imposed to address impacts of work.

1. Having regard to the evidence of the experts in response to the amendments made to the plans, I am satisfied that, subject to receipt of fully detailed architectural plans and elevations that indicate existing and proposed finished levels, internal room layout with room dimensions, elevations, materials and finishes, the proposed development would be consistent with the council's planning controls. I have particular regard to the controls that apply to the conservation area and the general objectives of those controls, the zone objectives and all other relevant standards.

1. For this reason, I am prepared to adopt the "amber light" approach to allow the applicant time to prepare plans that reflect the agreement between the experts and my findings and for the council to prepare consent conditions to reflect the changes made.

1. The plans must include all of those details shown in green and red on the plans, Exhibit F and detailed at [13]. Further changes are also required as follows:

• Further setback of ground floor rear wall for the length of the common boundary with No 10 Hopewell Street for a distance of 1m and no excavation within that setback area or the area between the wall of the proposed courtyard and the right-of-way. Minimum setback from that boundary is to be 1.74m and the rear wall is to be straight;
• Support columns to be provided to the first floor above that setback area rather than utilise a cantilevered wall above;
• Any stairs to be provided to the ground floor courtyard to be located within that courtyard and not within the right-of-way;
• No structures to be constructed within the right-of-way and the right-of-way to be maintained at existing levels.

1. On receipt of those plans, provided all of the amendments are made and I find the design consistent with the objectives agreed during the conciliation conference and this decision, there is no reason that consent cannot be granted.

Directions

1. The applicant is to file and serve fully detailed plans that reflect the findings of this decision by 4pm Monday 22 July 2013.

1. The council is to file and serve final conditions of consent reflecting those plans by 4pm Friday 26 July 2013.

1. Final Orders, including an order for costs under s97B of the Environmental Planning and Assessment Act 1979, will be made in Chambers.

______________________

Sue Morris

Commissioner of the Court

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Decision last updated: 17 July 2013