Land and Environment Court of New South Wales CITATION : Oceania Clarke Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 489 APPLICANT Oceania Clarke Pty Lt d PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10116 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Subdivision - alterations - change of use of premises - heritage significance - impact on heritage significance - historical subdivision pattern - bulk and scale - carparking - streetscape impact. Woollahra Local Environmental Plan 1995 State Environmental Planning Policy No. 10 - Retention of Low Cost Accommodation LEGISLATION CITED: Woollahra Residential Development Control Plan 2003 Woollahra Heritage Conservation Development Control Plan 2003 DATES OF HEARING: 02/06/2005 DATE OF JUDGMENT: 09/21/2005 APPLICANT Mr C. J. Leggat, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr M. Connell, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 21 September 2005 10116 of 2005 Oceania Clarke Pty Limited v Woollahra Municipal Council JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for a 2 lot subdivision, building alterations and change of use of the premises located at 76 Old South Head Road, Woollahra. 2 The subject site is located on the northern side of Old South Head Road and the south-western corner of Fern Place. It is described as Lot 3 DP 607 636. The site is irregular in shape with a 10.56 m frontage to Old South Head Road and it has a total area of 448.8 sq m. 3 At the front of the site there is a part 2 and part 3 storey building, which is currently used a boarding house. On the rear portion of the site there is a 2 storey timber dwelling, which is currently used as a dwelling. 4 Vehicular access to the property is currently gained from the site's eastern frontage to Fern Place. It allows one parking space on the site. 5 Accordingly, the issues for the appeal can be summarised as follows: o protection of the heritage significance of the property in the heritage conservation area, o whether the proposed subdivision will have a negative impact on the setting of existing building thereby affecting its heritage significance, o compliance with the historical subdivision pattern, o bulk and scale of the proposal, o carparking arrangements/streetscape impact. The proposal 6 This proposal involves: o Subdivision of the existing allotment into the following 2 allotments: o Lot A: 165 sq m (rear dwelling lot) o Lot B: 291 sq m (front lot), o Change of use of existing outbuilding on Lot A to dwelling house, o Change of use of building on Lot B from dwelling to boarding house, o Alterations and additions to the boarding house as follows: o demolition of existing rear balcony and construction of a new balcony and privacy screen to western side and planters along rear, o new windows at ground and first floor level within eastern elevation, o new carport with mechanical stacker for 2 cars, o internal modifications and new bathroom at ground level, o Alterations and additions to existing outbuilding as follows: o additional floor area to northern - eastern corner of ground floor and window to north-eastern elevation (executed), o additional floor and first level (executed), o new windows to all levels (executed), o new internal walls provide separate living areas at ground floor and first level executed), o removal of windows replacement with doors to access front terrace, o removal of first floor balcony (balcony constructed without approval), o hardstand carparking space along proposed rear boundary. Planning controls 7 Woollahra Local Environmental Plan (LEP) 1995; under which the site is zoned Residential 2(b) and the proposal for a boarding house and dwelling house is permissible with consent, subject to the subdivision. The objectives in cl 2 of this plan are: (i) to promote the development of land to which this plan applies as a comprehensively planned residential community providing recreational, commercial, retail and community facilities of a type which are appropriate to meet the needs of population to be accommodated, (ii) to relate population density to the capacity of the existing road network, the availability of parking, the provision of public open space, the capacity of the natural environment, to accept change without losing its attributes, the capacity of existing networks, the level of service by public transport, and the proximity to the city centre, schools, shops, health services and community facilities, (iii) to zone land in order to create separate areas of residential and non-residential use in the interests of residential amenity, a balanced distribution of services and employment and efficient traffic distribution, and (iv) to encourage and facilitate opportunities for diversity in dwelling density, type and tenure in suitable locations throughout the area of Woollahra 8 Clause 8 contains the following objectives for the Residential 2(b) zone: (i) to provide for areas of medium and high density residential development in appropriate locations, (ii) to encourage a diversity of dwelling types and tenure, (iii) to allow non-residential development of low intensity which is compatible with the residential character and amenity of the locality, (iv) to improve access to and along the Sydney Harbour Foreshore where opportunity arise, and (v) to protect the environmental attributes of the foreshore lands. 9 The LEP contains a number of special provisions that are relevant to the proposed development. However, there is no minimum allotment size in this Residential 2(b) zone. 10 Clauses 26 and 28 of the LEP relate to items of heritage significance and the heritage conservation area and state that the impact of a proposed development on the heritage significance of an item or surrounding conservation area shall be considered in the assessment of any proposed development. The site is not heritage item but it is within the Woollahra Conservation Area. 11 State Environmental Planning Policy No. 10 - Retention of Low Cost Accommodation. 12 Woollahra Residential Development Control Plan 2003: This RDCP came into force on 27 February 2004 and applies the subject site. It contains development control guidelines for streetscape, building sides, landscaping and visual and aural privacy. 13 Woollahra Heritage Conservation Development Control Plan 2003: This conservation DCP applies because the site is located within the Heritage Conservation Area and in the vicinity of an item of heritage. The Heritage Conservation Area has historical, aesthetic, technical and social significance at the local level. 14 Clause 2.4 of the Heritage Conservation Area (HCA) DCP contains the following objectives for the HCA: - To retain the heritage significance and significant characteristics of the HCA, and its precincts, including its variety of distinctive building types, the built and landscape evidence of its historical development and its public and private open spaces and gardens. - To allow removal or alteration of uncharacteristic features that detract from the significance of the HCA. - To retain and conserve (heritage items and contributory buildings known as significant items, (ie those properties and features identified as contributing to the significance of the HCA), including significant fabric, curtilages and settings. - To encourage the reconstruction as significant items that have been unsympathetically altered. - To ensure that development is compatible with the significance and significant characteristics of the HCA and respects the principles contained in the Burra Charter. 15 Woollahra Development Control Plan for Offstreet Parking and Servicing Provision 16 Woollahra Draft LEP and Draft DCP The evidence 17 For the assessment of this proposal, the parties agreed to Adjunct Professor R Mackay being the Court-appointed expert for heritage matters and he prepared a detailed report (Exhibit 2). Mr H Sanders also provided expert planning evidence for Council. 18 A number of objections from neighbours were received and both the oral and written objections contained in council's bundle have been considered. 19 For the applicant, Mr G Karavanas provided planning evidence. 20 The primary hurdle in this matter concerns the heritage impact of the subdivision and the subsequent building modifications. This is in the context that the building at 76 Old South Head Road is not listed as a heritage item, nevertheless it is within the Woollahra Heritage Conservation Area (HCA) and according to the expert evidence, makes a positive contribution. The HCA has historical, aesthetic, technical and social significance at the local level. 21 The site is within the Grafton Precinct of the Woollahra Conservation Plan, DCP 2003 which identifies some of the following characteristics: o the strong definition of its boundaries by the historic Grafton Estate northern boundary at Edgecliff Road and the dominant form of Sydney Einfeld Drive to the south, o the Victorian street pattern grid of the original Grafton Estate subdivision remains with the long, narrow lots, which are laid out on an axis perpendicular to Edgecliff Road, but in contrast to the eastern end (from Adelaide Street) which shows the latter subdivision of the former Adelaide Brewery site. o the typography slopes from south to north, creating streetscapes with repetitive step forms, … 22 However, cl 28 of the LEP requires that before council grants consent to an application to alter buildings or to subdivide (among other things), it must take into consideration "the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area". 23 Clause 2 (2)(g) of the LEP contains the following objectives for heritage conservation: (i) to identify heritage items and Heritage Conservation Areas and to provide measures for their conservation, protection and enhancement, (ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from heritage significance of heritage items and their settings and of heritage conservation areas, (iii) to encourage the restoration or reconstruction buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas. … 24 By reference to these controls, Mr Mackay says that the proposal has significant adverse impact on the character and significance of the Woollahra Conservation Area because: "The proposed subdivision is inappropriate, predominantly because of the lack of adequate physical and visual setting it would provide for the extant "Victorian" style building at 76 Old South Head Road. This building and the un-subdivided site provide a clear physical and visual hierarchy between the front address to the south and the rear of the property to the north. While a deferential (i.e. smaller) outbuilding is appropriate at the rear of the property, a subdivision almost adjacent to the rear of the proposed built form creates undesirable and uncharacteristic overcrowding. The above concern is related to the resulting non-compliance with Floor Space Ratio (FSR) controls which are further exceeded as a result of the subdivision. While FSR itself is not a primary heritage concern, it is not appropriate to breach or exacerbate non-compliance with otherwise applicable development standards where the consequence of doing so gives rise to adverse heritage impacts in a conservation area - as would occur in this case." 25 In regard to the issue concerning alterations of the historical subdivision pattern, the WHCADCP includes the objectives; "To retain the historically based subdivision patterns of the HCA" and "To ensure that subdivisions or site amalgamations will not lead to adverse impacts on the curtilages or settings of significant buildings." 26 Accordingly Mr Mackay says that the proposed subdivision would be inconsistent with these objectives, particularly as it would change the characteristic 'long narrow lot' and would provide an inappropriate physical and visual setting for the building at 76 Old South Head Road. This conclusion is expressed, based on his opinion that this building is 'contributory' within the Conservation Area. 27 A further heritage consideration concerns the proposed carparking arrangements and the impact on the streetscape, which is covered by s 3.4.9 of the WHCADCP that includes the following objectives: o To ensure that residential buildings, rather than the access and parking structures, remain the dominant elements in the streetscape. o To maintain and enhance the character of laneways where unsympathetic earlier development, such as high brick walls and full width garages, has eroded the quality of these urban spaces. 28 In response to the this, Mr Mackay says that the location, fabric and form of the proposed garage would be an intrusion in the streetscape and would adverse the impact on the Conservation Area because: o The proposed garage arrangement for the old building at 76 Old South Head Road is inappropriate in that it provides for presentation to the street of a built form that is uncharacteristic of the conservation area, particularly given the fact that there is an alternative garaging arrangement available (as already approved apparently not implemented in accordance with that approval) for the building at the rear. I believe that the proposed adjacent carport is also 'negative' in its streetscape contribution, but will have lesser impact because it is a light structure and the likely regular absence of a car in the carport space. 29 Insofar as the garaging arrangement now involves a two car stacker, which has a degree of openness and is partially screened by the gate, nevertheless I consider this represents a crowding of development along the common boundary which is a feature sought to be avoided. 30 Apart from these heritage considerations, the planning merits have been independently assessed by respective planning experts. This has resulted in a conference and the presentation of a joint report by Mr Sanders and Mr Karavanas (Exhibit 10). This report deals with streetscape impacts, subdivision, floor space ratio, setbacks, visual/acoustic privacy and adequacy parking and generally results in them maintaining opposing opinions on the relative merits of the application. 31 In addition to this, objections were made by neighbours in respect of the unauthorised use of the outbuilding and disamenity arising from noise and privacy intrusions. These concerns have been considered in the context of respective planning experts opinions. Conclusions 32 Having considered the evidence, the submissions and undertaken a view I do not consider this proposal merits consent, due to the cumulative effect of a number of aspects related to the site and its location within the Woollahra Heritage Conservation Area. Although the site is not a listed heritage item and its contribution within the conservation area is compromised to some extent by the approval in the 1980s of the rear outbuilding and other relatively unsympathetic approved alterations, nevertheless I consider this proposal would have an overall affect of further diminishing the heritage/conservation values in this precinct. 33 Initially I acknowledge that the building at 76 Old South Head Road, which was apparently built in the 1920s and situated on a 'long narrow lot' is consistent with the general character of this Grafton Precinct and makes a positive contribution. Insofar as the additional outbuilding was approved by council and constructed in the 1980s, I accept Mr Mackay's opinion that this could be interpreted as being subservient to the original building. On this basis and taking account of the scale and separation of the outbuilding, in my opinion the absence of a subdivision line assists in maintaining one of the important features of precinct i.e. 'long narrow lots'. In this context, I consider that the subdivision is a negative feature of the proposal because it is inconsistent with this identified feature. 34 However, if the proposed development is allowed, the combined effect of the subdivision and more extensive development adjacent to the new boundary, results in a significant intensification of development adjacent to this boundary, which effectively differentiates the two separate properties and removes the "subservient" role referred to by Mr Mackay. Consequently this crowding adjacent to the common boundary outcome, significantly detracts from the conservation character, in my opinion. 35 In particular, this development proposes the construction of a masonry wall adjacent to the new boundary line in order to provide support for the car stacker. Over this car stacker is a new balcony, albeit with a setback to the new boundary. But the position of the masonry supporting wall adjacent to the boundary definitely increases the bulk and scale of the development and notwithstanding that the carport door provides some screening, nevertheless in my opinion the overall affect unreasonably detracts from the physical and visual setting, as stated by Mr Mackay. 36 Apart from this, it is apparent that the combined effect of this development is to significantly change the use of the existing buildings. These changes necessitate building alterations to allow better living amenity and this includes provision of separate outdoor areas and additional on-site carparking areas. 37 These changes introduce other amenity impacts which the planners have addressed. Firstly Mr Sanders considers the subdivision would result in the creation of uncharacteristic allotments and inappropriate intensification of the use of the land. Whilst Mr Karavanas says the changes in the subdivision pattern is not critical, nevertheless reference to the overall lot layout in this immediate area shows a general consistency of ' long narrow lots', even though there have been some isolated subdivisions. 38 In my assessment of this issue, I consider that due recognition should be given to the prominent position of this site, which has three, prominent street frontages. The proposed subdivision, which facilitates the building alterations results in a noticeable build up of development with the parking stacker (albeit partly screened) and will have a significant adverse visual impact on the streetscape and also remove all impressions of the long narrow lot characteristic. This supports my conclusion that the proposal has negative impacts rather than making a positive contribution to the characteristics of this Heritage Conservation Area. 39 With regard to the bulk and scale of the alterations, I note that the boarding house will have a FSR of 1.35:1, which exceeds the maximum of 0.625:1 allowed by the LEP. However this non-compliance was addressed by way of a SEPP 1 Objection. This was assessed by council officers who concluded that taking into account the bulk and scale of the existing buildings, the SEPP 1 was well founded and should be allowed. I make no finding in this regard because I consider the application fails because of inconsistency on other heritage matters. 40 In the ultimate, I am satisfied that this existing development makes a positive contribution to the heritage conservation area and that its contribution is not diminished because the site is located towards the edge of the Grafton precinct. Despite some diminution of its contribution by past unsympathetic approvals, nevertheless I rely on Mr Mackay's heritage expertise and conclusion that the subdivision and associated works results in excess and uncharacteristic development that is unsympathetic in the HCA. Therefore I conclude that this application is not consistent with the provisions of cl 2(2)(g) of the LEP because it does not provide for any enhancement of the HCA. Also, the evidence leads me to conclude that the proposal is not consistent with the Woollahra DCP to retain the historically based subdivision pattern and accordingly it detracts from the HCA and should therefore be refused. Court orders 41 Therefore the orders of the Court are: 1. The appeal is dismissed. 2 Development consent to DA 502/2004/1, for a 2 lot subdivision, building alterations and change of use to a boarding house and single dwelling for the property situated at 76 Old South Head Road, Woollahra, is refused. 3 The exhibits may be returned except for 1, 2, 10, 12, A, C. 4 No order as to costs. _________________ R Hussey Commissioner of the Court Rjs/ljr 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.