Smith v Woollahra Municipal Council [2024] NSWLEC 1202

Land and Environment Court New South Wales

Medium Neutral Citation: Smith v Woollahra Municipal Council [2024] NSWLEC 1202 Hearing dates: 21-22 February 2024 Date of orders: 19 April 2024 Decision date: 19 April 2024 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is dismissed. (2) Development Application DA 131/2023/1 for alterations and additions to the dwelling house at 29 Hoddle Street, Paddington, is refused. (3) All exhibits except 3, 4, A, C, E and H are to be returned. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing terrace house within a Heritage Conservation Area Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, ss 34AA Woollahra Local Environmental Plan 2014, cl 1.2 Texts Cited: Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Natalie Laura Smith (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: F Berglund (Applicant) P Rigg (Respondent)

Solicitors: Ters Legal (Applicant) Peter R Rigg (Respondent) File Number(s): 2023/244212 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The owner of the terrace house at 29 Hoddle Street, Paddington, Natalie Smith (the Applicant), has applied for development consent for alterations and additions to the house, seeking to add a first floor rear wing including a bedroom and ensuite. Woollahra Municipal Council (the Respondent) refused this development application (DA 131/2023/1) on 13 June 2023 and it is from this refusal that these Class 1 proceedings arise. 2. These proceedings have been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court arranged a conciliation conference and hearing pursuant to s 34AA of the Land and Environment Court Act 1979 over which I presided, which was held on 21-22 February 2024. No agreement was reached in conciliation and the matter proceeded to hearing on 21 February. 3. The site is located within the Paddington Heritage Conservation Area (HCA) and, pursuant to the Woollahra Local Environmental Plan 2014 (WLEP), is zoned R2 Low Density Residential within which development for the purposes of dwelling houses is permissible with consent. 4. The existing dwelling at 29 Hoddle Street (the subject site) is a two storey, two bedroom terrace house with a rear courtyard. It is the second in a row of six two-storey terrace houses, numbering 21-31 Hoddle Street. 5. All six terraces are described by the parties as intact except for the neighbouring, end-terrace dwelling at 31 Hoddle Street. To date, alterations have not been permitted to the rear external form of the first floor of this row, however the end terrace at 31 Hoddle Street has a first floor rear extension for which the Council has no record of approval or construction. Alterations and additions have been permitted to the ground floor and rear yards along the row, including to the subject site where a ground floor extension and two storey garden studio were granted consent in 2002 (Ex 1). Subsequently, it is the principal building form, which includes the front elevation, roof, front verandah, fencing, and first floor rear form of these terraces that the Respondent considers intact, notwithstanding the first floor anomaly at 31 Hoddle Street. There is no dispute between the parties that the subject site and associated row of terraces is contributory in the context of the HCA. 6. The works encompassed in the proposed development are limited to the first floor, at the rear of the dwelling. The application as amended includes the partial demolition of the existing rear external wall, and the construction of a relocated second bedroom and new ensuite towards the rear of the house at first floor. The existing rear wall subsequently becomes an internal wall between the second bedroom and ensuite, and a room described as a walk-in-robe/rumpus/study. The resulting layout does not increase the number of bedrooms, which remains at two, but rather reconfigures the first floor. 7. The Respondent contends that the proposed first floor extension at 29 Hoddle Street (the subject site): 1. Is inconsistent with the desired future character of the area; 2. Will have an adverse impact on built heritage, and; 3. Will have an adverse impact on adjoining development. 1. At the commencement of the hearing, leave was granted to amend the application before the Court in response to the joint conferencing of planning and heritage experts, principally to increase the setback of the first floor extension and to reduce the demolition of the existing rear wall to the first floor. 2. Irrespective of these amendments, for the following reasons, I find that the proposed rear extension is unacceptable and the appeal should be dismissed.