Land and Environment Court of New South Wales CITATION : Nesbitt v Woollahra Municipal Council [2005] NSWLEC 759 APPLICANT Finola Nesbitt PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10534 of 2005 CORAM: Brown C KEY ISSUES: Development Application :- Alterations and additions - heritage significance - heritage conservation area Woollahra Local Environmental Plan 1995 LEGISLATION CITED: Paddington Development Control Plan DATES OF HEARING: 16/12/2005 EX TEMPORE JUDGMENT DATE : 12/16/2005 APPLICANT Ms M-L Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr M Connell, solicitor SOLICITORS Michell Sillar JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 16 December 2005 10534 of 2005 Finola Nesbitt v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of DA 192/2003/1 for alterations and additions to an existing terrace at 84 Paddington Street, Paddington (the site). The site and surrounding area 2 The site has a frontage of 6.26 m to Paddington Street, a frontage to Paddington Lane of 6.01 m, and side boundaries of 31.955 m and 31.945 m, giving a total site area of 195.5 sq m. The site is currently occupied by a three storey plus attic terrace building fronting Paddington Street. The terrace building is 5.3 m wide with a side passage along the north-western boundary. The terrace is one of a pair with 86 Paddington Street. The building presents as two storey plus roof to the front and three storeys plus roof to the rear. At the rear there is a 3 m high and 5.6 m wide double garage with parapet, with access to Paddington Lane. 3 Two and three storey Victorian terrace houses dominate the surrounding area. Paddington Lane is characterised by a variety of garage designs, with some single storey cottages addressing the lane. Garages are predominantly single storey although properties at 86 and 78 Paddington Street, and 49 and 51 Windsor Street have studios above. Relevant zoning controls 4 The site is zoned Residential 2(a) pursuant to Woollahra Local Environmental Plan 1995 (LEP 1995). Clause 2 provides aims for the plan. 5 Clause 8(5) provides that consent shall not be granted unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the plan and the zone in which it is located. 6 Clause 27 requires consideration to be given to the likely effect on the heritage significance of a heritage item or heritage conservation area in its setting, although no specific heritage items were identified as being potentially affected by the proposed development. 7 Clause 28 provides requirements for development within heritage conservation areas and is relevant as the site is located within the Paddington Conservation Area. 8 The Paddington Development Control Plan (the DCP) also applies and provides detailed controls for a development in the area. The proposal 9 The proposed development provides for alterations and additions to the existing terrace house and the construction of a new double garage and full width studio above the garage. The alterations and additions to the existing building incorporate: + an extension of the cantilevered balcony at the third level by 900 mm with timber louvred screen to the western end, + a new window to the north-west side elevation of the building at the third floor level, + two sets of new French doors and Juliet balconies at the second floor level, + a new veranda at the ground floor level extending from the dwelling, + a new door at ground level to the northwest side elevation of the building, + a new pergola with corrugated steel roof at the rear of the ground floor level, + a new 3.3 metre high shade/architectural structure in the rear courtyard, and + a new bathroom and laundry facilities at the ground level within the existing building. 10 The proposed garage/studio and bathroom proposes: + an overall width of 6 metres or the full width of the property, + a garage door width of 5 metres and a height of 2.2 metres, + three timber framed windows facing Paddington Lane and + two windows, an entry door at studio level facing southwest plus bifold doors at the garage level. The evidence 11 The parties agreed to the appointment of Mr Mark Robinson as the Court-appointed heritage expert. Mr Robinson raises concerns over the impact on the Paddington Conservation Area; his evidence being limited to heritage matters. 12 Additional evidence was provided by local residents Mr Goldstiver of 82 Paddington Street and Ms Taylor of 86 Paddington Street. In addition Dr Ogborne and Mr Smith provided evidence as contracted purchasers of Ms Taylor's property. They raised concern over loss of privacy and the physical appearance of some of the additions in addition to the issues raised by Mr Robinson. 13 The Court was also provided with a bundle of documents containing all the submissions received by the council when the development application was advertised. 14 Irrespective of the findings of the Court on the disputed issues, the applicant requested that those matters not in dispute be approved by the Court. The issues 15 The issues in the proceedings related to some but not all parts of the proposed development. The areas in dispute relate to the balcony extension, the proposed new window on the upper level and the proposed new double garage/studio. The balcony extension 16 The application provides for the extension of the existing cantilevered balcony by 900 mm. Mr Robinson maintained that the full width balcony was inconsistent with objective 03 of Pt 5.24 of the DCP. He recommended that it should be reduced by 900 mm from each end. He also supports the removal of the privacy screen because of the additional bulk it provides. 17 Dr Ogborne and Mr Smith saw the balcony as having an unacceptable impact on the adjoining bedroom because of the extended length and greater opportunity for use. Mr Goldstiver expressed concern that it would be possible to look back through the dormer window into his attic area from the proposed balcony. 18 On this matter I accept that the full width balcony extension is acceptable. However, an area of 600 mm at each end of the balcony should be set aside for permanent planter boxes with planting to prevent pedestrian access. I am not convinced that the full width balcony is so inconsistent with the Paddington Conservation Area, considering nearby examples of full width balconies, that it should be amended in the form suggested by Mr Robinson. 19 The potential impact on 86 Paddington Street is more difficult to address as the proposed balcony is located off a living room and adjoins the main bedroom of 86 Paddington Street. While there is an obvious fundamental incompatibility between these two rooms, it is an existing approved situation. I do not accept that the extension of the balcony would exacerbate this relationship to the point where it would support the refusal of this part of the development application. The proposed planter will increase the physical separation although I accept not to any significant degree. Some planting will provide some screening but also not to a significant degree. The planter on the opposite side to 86 Paddington Street will also deny any opportunity to look back into Mr Goldstiver's attic. Window on the northwest elevation 20 The proposed window on the northwest elevation on the third floor was opposed by Mr Robinson on heritage grounds. The council however accepted that it may be provided but with a similar sill height to the other windows in this elevation. Mr Goldstiver expressed concern over the potential loss of privacy from this window into his attic room. 21 On this particular issue I accept the council's position that the window may be provided but with a similar sill height to the existing adjoining windows. In my view the potential for overlooking is limited by the acute angle and the limited view lines into the room created by the dormer window structure on Mr Goldstiver's dwelling. Double garage/studio building 22 Mr Robinson saw the proposed double garage studio building as being unacceptable. He states that Pt 5.2.6 of the DCP contains a number of objectives, guidelines and controls for on site parking and garages including loft structures over garages. He concludes that the structure does not comply with the intent of the DCP and as such would result in a building that is excessively high, bulky, out of scale with its neighbours and intrusive to the general scale of development in the Paddington Lane. Similar concerns were expressed by a number of local residents. Additionally Dr Ogborne and Mr Smith expressed concern over loss of privacy from the studio and Mr Goldstiver expressed concern over the close proximity of the two storey structure to his rear open space area. 23 In considering this issue the Court was taken on a view of existing development in Paddington Lane including recent approvals under the DCP. The adjoining site at 86 Paddington Street has a double garage with a first floor studio but not at a width that occupies the full width of the site. Even though cl 5.2.6 of the DCP provides specific design principles for garages and studios off lanes, the adjoining development is inconsistent with the specific design principles in this section of the DCP, although there was no evidence to suggest what structures were on this part of the site prior to the recent alterations and additions. In the particular circumstances of this case there are two existing garages and for this reason an argument could be made for their retention notwithstanding the requirements in the DCP. 24 The studio, in my view, is a different proposition. The proposal covers the entire width of the site and I accept Mr Robinson's evidence that it presents as an unacceptably bulky and out of scale structure with its neighbours and the general form of development along Paddington Lane. The design also has the equally undesirable effect of presenting an overbearing and bulky appearance from Mr Goldstiver's rear open space area, even when considered in the relatively dense residential area of Paddington. In my view either of these two impacts would warrant the refusal of this part of the application. The issues of loss of privacy from the studio are also valid, however I accept could be addressed through minor redesign. 25 Consequently I find that the garage/studio component of the proposal is inconsistent with objectives 03, 05 and 08 of cl 5.2.6 of the DCP. I also find pursuant to cl 8(5) of LEP 1995 that the garage/studio component of the development is inconsistent with objective (a) of the 2(a) zone and as such this part of the application must be refused. 26 I accept that the alterations and additions not identified as issues in these proceedings are appropriate for approval. 27 Consequently the orders of the Court are: 1. The appeal is upheld in part. 2. DA 192/2003/1 for alterations and additions to an existing terrace at 84 Paddington Street, Paddington, is approved in part and subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits 1, 2, 7 and A. 4. Costs are reserved. ____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.