Land and Environment Court of New South Wales CITATION : Edward Szewczyk and Associates v Woollahra Municipal Council [2005] NSWLEC 641 APPLICANT Edward Szewczyk and Associates PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10280 of 2005 CORAM: Hoffman C Appeal :- Alterations and additions to a dwelling - contributory item - character of a villa - proximity to heritage items - in a conservation area - in a group of significant villas KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Heritage Conservation Area DCP DATES OF HEARING: 12/08/05 and 18-19/08/2005 DATE OF JUDGMENT: 11/11/2005 APPLICANT Mr J. Ayling S.C., barrister instructed by Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr I. Hemmings, barrister instructed by Home Wilkinson Lowry Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 11 November 2005 10280 of 2005 Edward Szewczyk and Associates v Woollahra Municipal Council JUDGMENT 1 This a Class 1 Appeal No. 10280 of 2005 between Edward Szewczyk and Associates verses Woollahra Municipal Council in regard to the refusal of consent for alterations and additions to No. 21 Jersey Road, Woollahra. 2 The site contains a very old house in amongst other very old houses on adjoining and adjacent lots in Jersey Road. No. 23 Jersey Road on the east of the proposal is a heritage item under Woollahra Local Environmental Plan 1995 and so is No. 17 that is two doors to the west. No. 16 the Police Station is a little further to the west and on the opposite side of the street. It is a heritage item also. The immediate neighbour to the site on the west is No. 19 and it is not a heritage item. 3 The locality is however, in Woollahra Heritage Conservation area, west Woollahra Precinct. No. 19 and 21 are considered to be contributory items to the conservation area. All four houses No'.s 17 to 23 are large detached houses and out-buildings on large allotments and dated from the late 1850's and 1860's. 4 The proposal is to restore much of the existing house at No. 21 but do some internal alterations and demolish the rear section built around 1900, and then extend from the rear of the house to the back fence with a one and two storey addition. It would contain on the ground floor a kitchen, family room, gym, laundry and two car garage. On the upper floor is an outside deck on part of the garage roof and then a library, a study, a fourth bedroom and two en-suites and walk robes belonging to bedrooms 2 and 3 that are in the original house. The en-suites and walk in robes are reached by a short bridge across 1.5 m wide gap between the original house and the extension. 5 On the ground floor the bridge is repeated to link the kitchen with the dining room and the stair hall. A garden in proposed in the 1.5 m gap. The bridge has floor to ceiling glass on the ground floor. On the upper there is floor to ceiling glass again, but with timber privacy screens outside for persons walking from bedrooms 2 and 3 across to the associated en-suites. 6 In the original house a new large opening or doorway is proposed between the dining and the living room. Windows of the dining on the west side are to be turned into French doors to a new patio in the west side setback that is about 4 m wide. Again in the original house a room in the south east corner of the ground floor that is a study off the entry foyer is to be opened up to the stair hall and foyer to enlarge them and to enable a guest powder room and toilet to be installed. On the upper floor of the original house the master bedroom that occupies two thirds of the northern or street façade of the house will remain. The existing room in the other third of the street façade is to be converted to a walk in robe and en-suite. The street façade has ground and first floor verandas facing the street in three bays with ornate columns supporting the veranda. Also there are three sets of French doors on each level evenly spaced across the façade giving access to the northern side of the house and on the ground floor giving access to the front garden. 7 The existing rear wing built around 1900 at the back of the original house contains the current kitchen and laundry and the back veranda on the ground floor. On the upper floor is a bathroom, a fourth bedroom, a study and common room the latter connecting into the stair hall. 8 In grounds around the house, the front fence and lawn, major trees near the street, the entry gates, driveway and east side fence and east side vegetation are retained. The existing garage is to be demolished. A swimming pool and patio are proposed on the west side between the proposed extension and the boundary with No. 19. A new 1.8 m high brick fence is proposed along the common boundary with No. 19. 9 As previously mentioned another patio is proposed further along the west side accessed by the French doors from the dinning room. That patio extends to about the alignment of the northern or street façade of the house. 10 New landscape plantings are proposed along the west and the rear southern boundary and around the extensions and new patios. 11 The issues are: 1. The impact of the proposed works to 21 Jersey Road, Woollahra, on the heritage significance of the group of which Orama is a part. The group includes 17, 19, 21 and 23 Jersey Road, Woollahra. 2. The scale of the development competes with the original building and surrounding buildings. 3. The proposal would result in a loss of the Victorian setting of the dwelling at 21 Jersey Road, Woollahra, and the other three houses in the group. 4. The proposal will impact on the garden setting of 21 Jersey Road as well as the other 3 houses in the group. 5. The proposal would result in an intrusive impact on the rear addition and garden areas of No. 19 Jersey Road, Woollahra. 6. The sightlines across the group of 4 will be lost as a result of the proposed rear addition to 21 Jersey Road, Woollahra. 7. The sightline from 17 Jersey Road, Woollahra, to the heritage wing and chimneys of No. 23 Jersey Road, Woollahra, would be lost, as would the sightlines from 23 Jersey Road to 17 Jersey Road. 8. The materials of construction proposed are not in keeping with the materials used in the group and are contrary to the provisions of C1 of Section 3.4.5 of the Woollahra Heritage Conservation DCP. 9. The works to 21 Jersey Road, Woollahra, do not provide a setback to the rear boundary, which does not reflect the siting of the other 3 dwellings in the group. 10. The development would result in an unreasonable impact on the amenity of the surrounding development. These impacts include loss of acoustic and visual privacy, particularly to 19 and 23 Jersey Road Woollahra. Approval of the rear roof terrace would be an undesirable precedent. 11. The proposal does not comply with the objectives and controls in Section 3.4.3 of the Woollahra Heritage Conservation Area DCP in that it fails to achieve a cohesive relationship between new and old, and is not consistent with the character of the West Woollahra Precinct. 12. The proposal does not comply with the objectives and controls in Section 3.2.4 of the Woollahra Heritage Conservation Area DCP in that it fails to retain all existing chimneys. 13. Whether, having regard to the above issues the proposal is consistent with clauses 2(2) (g), 8(5), 27 and 28 of the Woollahra Local Environmental Plan 1995, and clause 2.3 (Desired Future Character of the Woollahra HCA), clause 2.4 (Objectives), clause 3.2.3 (Objectives and Controls in C1 and C4), Clause 3.4.1 (Buildings and Elements Adjoining Heritage Items), Clause 3.4.3 (Building Location and Built Form), 3.4.12 (Acoustic and Visual Privacy). 14. Whether the proposal is in the public interest. (Section 79C (1) (e) of the Environmental. Planning and Assessment Act 1979 ("EPA Act")). 15. Submissions made to the Council and evidence presented to the Court which needs to be considered pursuant to Section 79C (1) (d) of the EPA Act. 12 The respondents evidence was heard from: * Mr Loxton, objector and resident of No. 17 Jersey Road * Mr Robinson, objector and resident of No. 19 Jersey Road * Mrs Roberts, objector and resident of No. 23 Jersey Road * Mrs Warnock, objector and resident of No. 18 Queen Street, behind the proposal * Mr Poland, objector representing the Woollahra Historical and Heritage Society * Ms Tooth, objector representing the Jersey Road Action Committee * Mr Sole, objector representing the Queen Street and West Woollahra Association * Mr Hosking, objector representing the Paddington Society * Ms Ketelbey, consultant heritage architect * Mr C Lucas, consultant heritage architect 13 The applicants evidence was heard from: * Mr G Brooks, consultant heritage architect * There also was a statement of environmental effects from Mr M Neustein, architect and town planner but he was not required for cross-examination. 14 The parties had agreed that the Court should appoint as experts: * Mr R Staas, consultant heritage architect * Mr S Harding, consultant town planner 15 The determinative issues in summary can be described as: What is the intrinsic character of villas as heritage or contributory items and does that include the settings on all four sides not just from the street, and does the proposal fit that character. 16 The four heritage experts considered the shorter Oxford Dictionary description of a "villa" and endorsed it as applicable in this case: A house apart from the town having a degree of self sufficiency and often incorporating its own outbuildings including stables and garden buildings. 17 The parties and the experts agreed No. 23 in its identification as a heritage item included the house the outbuildings and the gardens. No. 17 is identified as a heritage item for its house and including the outbuildings but not the garden. They also agreed that No's. 19 and 21 are contributory items and all four are villas. 18 The heritage experts agreed that a villa is a term that describes free standing houses of colonial days set in gardens and service yards with other subservient rear extensions and outbuildings. 19 They also agree that the four villas are substantially as they were in about 1893 to 1900 except for vegetation. The latter date is the period during which the subject site No. 21 had it's rear extension, the others having their rear extensions prior to then. The experts tendered to discount latter things like garages as having lesser importance although they could be said to represent evolution of the heritage items and contributory items through the period of 1900 to 2000. The experts accepted the antecedents of garages namely stable buildings as being able to change use and become accommodation or residential recreation buildings and still retain their heritage importance. 20 It was also accepted that rear yards had been originally service courtyards for horses and carriages to manoeuvre around the stables and to provide space for other domestic functions of the period. In the case of No. 23 its rear courtyard is still used for vehicle manoeuvring and for pedestrian links between the residentially occupied outbuildings and the main house. In No. 17's case the rear yard is currently for lawns, gardens, domestic recreation and vegetable patch. No. 19's backyard has similar uses. 21 The subject site at No. 21 has the more recent garage probably built around the 1960's and a backyard lawn space. Mr Brooks report showed an 1887 plan indicating there was originally in the backyard a stable and a gardening shed none of which still exist and a garden pavilion in the western side setback. 22 In researching the origins of the four villas it was found they were originally on the outer edge of urban development. In the 1850's the allotments were even described as semi-rural. Each of the four villas occupies three of the original 20ft wide allotments in the subdivision. So the original intent of all four owners was to acquire bigger than normal land areas to construct substantial detached houses on them and have enough room for gardens plus the outbuildings and the service courtyards necessary at the time for the functioning of a larger household. 23 There was at the time of subdivision a laneway running across the rear of each lot on paper. However, it seems that it was never used except by No. 23. The other three houses gained access for their horses and carriages direct from Jersey Road or as it was then known Point Piper Road. Ultimately the lane was acquired by each of the four properties as its own. 24 Apparently No. 23 acquired part of the rear of the property on the opposite side of the lane at some point in time as its land is larger and extends closer to Queen Street than the other three. 25 All these things have a bearing on the importance of the setting of the heritage items and the contributory items. 26 The applicant and Mr Staas said the conservation value emanated from the perception of the buildings from Jersey Road. 27 The respondent and Messrs Lucas and Ketelbey said the conservation value must include all four sides of the villas, and, considering they are the sole remaining example of a group of such villas in Paddington if not in Sydney, the setting is the key to the physical features that made each of them a villa in the first place. Therefore the setting is one of the most important features in retaining that character in the future. 28 The applicant put that in statutory terms the four villas are not identified as a group, but I must say for a valuation of merit and factual issues they obviously are a group. 29 This can be seen most clearly from two locations, the one usually seen is from the street. Whether approaching from Oxford Street or Rush Street there is a distinct break in the rows of continuous terraces built close to the street front. The front gardens of the four villas and the large setback to the houses is very noticeable. The fact that the houses are substantial and detached on large lots with large front and side setbacks and significant trees and vegetation is a huge contrast to the terraces of 2 and 3 storeys with only a 2 m wide garden at the front. 30 The second view point for the villas as a group is from the air and that can be seen in the photo in Exhibit 'A'. The break in the rows of contiguous terrace houses' and commercial buildings' roofs is apparent with the villas set detached in green lawns and gardens quite different to their neighbours and other nearby buildings. 31 As put in submissions in echo of Mr Lucas and Ms Ketelbey, the applicants offered to move the back of the proposal 1 m off the rear boundary so there could be "circunambulation" takes the proposal nowhere in maintaining that setting. The latter two experts said they could see some merit in a different proposal with a new outbuilding along the rear boundary to give additional accommodation in No. 21 and maintain a substantial yard or courtyard between the main house and a subservient extension, so that the essential component of the setting could remain. 32 The applicant and its experts and the Court appointed expert thought that the 1.5 m gap between the original villa and the proposed extension was enough to separate the two and create a clear distinction between the original and new fabric. This would justify occupation of the rest of the rear yard. The fact that the proposed extension was narrower than the original house and therefore limit its visibility from the street was also a benefit because it enabled No. 21 to maintain its detached appearance in a garden setting. With the existing garage gone the view from the street along the driveway went right through to the vegetation at the back fence. 33 It was notable that the outbuildings at the rear of the other three villas were clearly subservient. In No. 23 because it had a larger allotment it had been possible to add to the rear of the main house and still have a courtyard between it and the stables. That rear addition was acknowledged by Mr Staas in cross-examination as subservient even thought it was substantial. The other consideration being that the extension to No. 23 was well over a 100 years old and designed very much in keeping with the main house. 34 No. 19 had clearly subservient rear components with roofs stepping down towards the backyard fence with a courtyard gap between them and the converted stables against the rear boundary. 35 No. 17 had similarly subservient rear components with roofs stepping down from the main building and also had converted stables but at the rear they were separated from the back boundary by a small courtyard. 36 Whilst No. 17, 19 and 23 all had large setbacks on the western sides they had larger setbacks on the east and the back yards especially between the smaller rear buildings and the eastern boundaries were quite large. These separations afforded reciprocal views or perhaps better described as open aspects between the villas. From ground level one is conscious of the main house on each lot being seen above the boundary vegetation. The out-buildings are not highly noticeable and therefore enable the open aspect. Whilst fences and vegetation afforded privacy at ground level, most could see into each others backyards from 1st floor windows of each main house so privacy was not a big issue. 37 The objectors and Mr Lucas and Ms Ketelbey at least saw the open aspects across the rear yards as very important to maintaining the settings of the villas as an essential part of their character. The rarity of the heritage items and the contributory items, in themselves, and as a de facto, if not a statutory group, only emphasized the importance of this component of the setting in their opinions. 38 The height and bulk of the proposal would clearly interrupt this. There would be the loss of the tall chimney of the 100 year old extension to the proposal. Tall chimneys are a skyline feature of the villas and specifically mentioned for preservation in the controls. The proposal also would have a flat roof at the second storey level and contemporary design and style and materials that were not considered to be sympathetic to the existing buildings in style or materials. 39 The applicant emphasized the council controls as not requiring current extensions to copy older designs, in fact it encouraged contemporary designs that appropriately continued the evolution of heritage items and contributory items in line with the Burra Charter Guidelines. 40 The applicant said No. 21 had a bigger front setback than No. 17 or 19 and being on the same sized allotment, had less room in the rear yard for extensions. Also, tucking a new garage in behind the house kept it out of sight from the street and enabled the side setbacks to read more strongly to retain the villa setting from the street. The rear part of the garage that was one storey with a deck on its roof would not be visible from the backyards of the neighbouring villas and would maintain enough of a gap between the second storey and the rear boundary to retain the rear villa setting if needed they said. Mr Staas and the applicant's heritage expert Mr Brooks maintained the statutes and controls, on setting especially, only operated from the streetscape perspective. They insisted that an all round garden setting was not intended in the legislation and due to the private property ownership of the villas the settings at the rear could not be appreciated by the public. 41 Referring to the statutes and controls I note the following: Objective cl 2(2)(g) of the Woollahra LEP 1995. (g) in relation to 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 the heritage significance of heritage items and their settings and of heritage conservation areas, (iii) to ensure the restoration or reconstruction of buildings or works which are heritage items or buildings and works that contribute to the character of heritage conservation areas, (iv) N/A (v) to provide for the detailed control of development associated with or in proximity to heritage items and heritage conservation areas, (vi) to require, when considered necessary, the consideration of a statement of heritage significance or a conservation plan before consent is granted for development relating to a heritage item or development within a heritage conservation area, Objectives of the Residential Zone No. 2(a) (a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses. 42 One can understand from this that it is not just heritage items that are subject to controls. New buildings or works including alterations and additions near an item or in a conservation area are intended to be controlled to ensure the long term maintenance and enhancement of the important characteristics. The important terms are "undertaken in a manner sympathetic to and does not detract from". Cl 8(5) of the Local Environmental Plan: The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. 43 Being consistent with the objectives includes the important terms mentioned above. Clause 27 and 28 say: 27 Development in the vicinity of heritage items, heritage item group, heritage conservation areas, archaeological sites or potential archaeological sites. The council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item, heritage item group, heritage conservation area, archaeological site or potential archaeological site, and on its setting, when determining an application for consent to carry out development on land in its vicinity. 28 Heritage conservation areas (1) A person shall not, in respect of a heritage conservation area: (a) demolish or alter a building or work within the area, (b) N/A (c) N/A (d) erect a building on or subdivide land within the area, except with the consent of the council. (2) The council shall not grant consent to an application required by sub cl (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area. (3) The council shall not grant consent required by sub cl (1) unless it has considered a statement of heritage impact or a conservation plan or both as may be required by the council. 44 The notable terms in cl 27 and 28 are that a determining authority needs only to take into consideration the likely effects on items and conservation areas. The applicant pressed that as not mandating refusal. It seems to me whilst refusal is not mandated the flexibility allowed does not override the prime objectives of the statute and enables a merits assessment based on the statute and the controls. 45 The Woollahra Heritage Conservation Area Development Control Plan (DCP) has a number of relevant more detailed controls: Cl 1.6 Objectives of this plan The objectives of this plan are: a) N/A b) to acknowledge and conserve the heritage significance of the Woollahra HCA; c) to encourage the retention and appropriate development of significant items; d) to provide controls to protect the identified heritage values and significant character of the Woollahra HCA and encourage contemporary design that responds appropriately to that character; d) N/A 46 It needs to be noted that the term "significant items" includes heritage items and contributory items such as the subject property. Also it needs to be noted that the objectives do not restrict one to only the conservation of streetscapes or things that can be seen from the public domain. Also the development control plan allows for groups of significant items that are not restricted to the statutory groups of heritage items listed in the Local Environmental Plan. This is seen in cl 3.2.1 of the DCP quote: 3.2.1 Conservation of significant items and group significant items Explanation Many types of significant buildings and landscape elements remain in the HCA that represent all phases of the area's development. In order to retain the heritage significance of the area it is important to retain the principal building forms of the significant buildings and the original landscape structures. The original front building section under one roof, known as the principal building form in this plan, contains the main rooms of the building and commonly faces the street front, with a secondary, section behind, sometimes separated by an access way. The principal building forms of the various building types are described in cl 3.3. Some sets of similar significant items contribute as a group to the heritage significance of the HCA. Where a building belongs to a group of similar items, it is important that alterations and additions do not compromise the character of the group as a whole. The original consistency of the street front elevation should be retained and conserved, and so should that of side and rear elevations where these are visible from the street or other public places. Objectives O1 To ensure those significant items, outbuildings and their curtilages and settings are retained. 02 To ensure that the distinctive shared characteristics of significant groups of buildings are retained and enhanced. 03 To ensure that alterations and additions within a significant group conform to the shared characteristics of the group and do not compromise its integrity. 04 To ensure that alterations and additions to heritage items are to be undertaken in a manner that retains their heritage significance. Controls Significant items C1 Significant items are to be retained and conserved, that is: * Their significant fabric is to be retained * Original principal building forms (including roof pitch, eaves height and chimneys), are to be retained * No alterations or additions are to be made to the original elevations, details, materials or finishes of the principal building form except to allow for restoration or reconstruction * Original verandas and balconies are not to be infilled or enclosed. * Original room layouts of the principal building forms are to be retained. C2 Partial demolition of internal cross walls to the principal building form will only be permitted where: * The original room layouts are able to be interpreted. * The main rear wall to the principal building form remains. * The structural integrity of the building and its adjoining buildings are not compromised. 47 The second paragraph of the 'Explanation' is important in this case, plus Objectives 01, 02 and 03 and Controls C1, the first and last points and C2 the first point. There is a reference to retention of elevations visible from a street or public place, but it is not to the exclusion of other important characteristics. 48 An important consideration is cl 3.4.3 which states, in part, that flexibility is available where developments are all new or existing non-contributory buildings. 3.4.3 Building location and built form Explanation This part applies to additions and to infill or replacement development, hereafter nominated as new development. The sitting and alignment of buildings are important characteristics of the streetscapes of Woollahra. In most streetscapes there is a consistent pattern of similar setbacks from the street and from side boundaries. Good development results in new structures that complement and enhance the existing character of the area. Compared with significant items, there is greater scope for design flexibility with new buildings or additions to non-contributory buildings provided the proposed work would not detract from the significance or character of the streetscape or the HCA generally. Where alterations or additions are not visible from the street or other public places, the style is less important; for example, a contemporary design may be appropriate for a new detached pavilion to the rear of an existing house. Council does not advocate replication of previous architectural styles in cases of infill development. Where infill development is proposed, a contemporary design approach that respects the context is encouraged. Good infill development results in new structures that complement and enhance the existing character of the area. The height, bulk and scale of new development have the potential to adversely affect the amenity of private and public lands. The controls are designed to ensure that the scale and bulk of new building is compatible with site conditions and the desired future character of the HCA as outlined in cl 2.3, and the significant characteristics of precincts described in cl 3.1, in particular by respecting the characteristics of nearby significant items. Objectives 01 To ensure that the siting, levels and front, side and rear building setbacks of additions and infill development continue the established historical pattern of development. 49 From a reading of this and Objective 01, there is little flexibility if a subject site is a significant item and a key characteristic of the villa is curtilage on all sides because it creates its setting. 50 Clause 2.3 of the DCP says: 2.3 Desired future character of Woollahra Heritage Conservation Area The desired future character of the HCA is one that: * Retains its heritage significance and its recognition as a rare and distinctive urban area, * Retains and promotes evidence of the historical development of the HCA and its individual precincts and enables the interpretation of that historical development, * Maintains the residential character that has been predominant from the earliest phase of its development, * Maintains the character and significance of its identified precincts, * Retains the distinctive building types characteristic of the area and it precincts, * Exhibits contemporary design excellence 51 Clause 2.4 of the DCP says in part: 2.4 Conservation philosophy and management policy * 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, (i.e: those properties and features identified as contributing to the significance of the HCA), including significant fabric, curtilages and settings. 52 Some important parts of these are the references to maintaining the character of contributory buildings and heritage items including curtilages and settings. 53 Clause 2.5 says in part: 2.5 Contemporary design in Woollahra Part of the cultural significance of the HCA stems from its ability to demonstrate the important historical phases of its development between the mid-19th and mid-20th centuries. The HCA's surviving built and natural fabric retains the potential to reveal further evidence of ways of life, buildings and land uses which have now changed or disappeared. Contemporary design for infill development and for additions to significant items is therefore encouraged as long as it respects its context and achieves a cohesive relationship with historically significant existing fabric. In some locations and circumstances, a traditional design approach may be required. Such an approach may be appropriate, for example, where alterations are proposed to a highly intact section of a building that has a high level of significance. A thorough understanding of the historical background and physical context of the site will act as a guide to the appropriateness of the design approach. Designers will be required to demonstrate that the application of contemporary forms, materials or detailing provides an appropriate response to the streetscape, the precinct and the HCA as a whole. 54 It is noted that once again there is a reference to streetscape but that is not to the exclusion of all other aspects of conservation. As the clause says "a thorough understanding of the historical background and physical context of the site will act as a guide to the appropriateness of the design approach". 55 Although this clause deals with the contemporary design the particular reference above can be seen to apply to the total concept of the proposal and how it effects the significant item and its setting. 3.3.2 Free-standing multi-storey houses Explanation Freestanding multi-storey houses vary from small timber, stone or brick dwellings often with terrace like forms to larger villas and houses set within landscaped gardens. They include Victorian middle class villas, large Victorian mansions built on the original estates of the gentry and the later inter-war houses built on subsequent subdivisions. A garden setting is usually associated with freestanding dwellings, with a fence to match the style of the dwelling. There may also be culturally significant outbuildings or landscaped elements from previous estates. Controls C4 Remnant elements of the settings of significant items, including but not limited to gardens, mature trees, archaeological deposits, original front fences, pathways, and contributory landscape elements are to be retained, whether or not they are located on the same site as the item. Group significant items C5 The distinctive original shared characteristics of a significant group of buildings are to be retained, including * Existing patterns of principal roof forms within unaltered groups of significant items. * Secondary or rear forms, which must not be raised or altered if the rear forms are part of a group of similar roof forms. C6 Where a building is one of a group of similar attached significant items, the design of additions must: * Not compromise or dominate the group as a whole. * Be consistent with the form and pattern of original roof forms of the adjoining significant items. * Be consistent with the form, symmetry, breezeway pattern and rhythm of the original rear wings of the group as a whole and must not visually disturb the cohesiveness of the group. 56 It is noted that villas are specifically mentioned in cl 3.3.2 and within the controls the garden setting, character of freestanding dwellings, landscape elements, gardens etc whether or not on the same site as the proposal are important. 57 I conclude from these that one of the shared characteristics of the villas and their settings is the clear identification of the principal building as a villa surrounded by open space be it service courtyards, gardens or driveways with outbuildings clearly subservient to the principal building. The principal building may include additions and alterations where the shared characteristics of the group are not compromised. 58 Also additions must not compromise a group of significant items, must be consistent with pattern of original roof forms of adjoining significant items and not visually disturb the cohesiveness of the group. None of these mention that only the streetscape impact is to be considered in assessment of these matters. 59 Mr Staas relied to some extent on the council officers report (M S Thom) who wrongly put the construction date of the villas in the same period as the terraces in Jersey Road. The villas well predated the terraces at a time when they had a semi-rural setting not a suburban one surrounded by terraces. The villas represent a rare example of a way of colonial life that has changed or disappeared. 60 Mr Staas had regard to the predominant rear setback in accepting the proposal. His conclusion referred to the rear setbacks of the outbuildings of the other villas. But I can see that the pattern of development of the subservient outbuildings is about historical setting not just an acceptance that the principal house can be extended virtually to the back fence because the adjoining and adjacent villas have outbuildings at the back fence. 61 One can see the size and bulk of the proposed extension of No. 21 in the photos of the model in Exhibit 12 and the principal house and outbuildings of No.'s 23 and 19. The proposal virtually fills the backyard except for the side setbacks with the consequence of the villa setting being lost for the subject site and the villa settings of the heritage items No.s 17 and 23 being adversely effected. Below is an extract of Exhibit 12. 62 It occurs to me there are alternative solutions as mentioned by two of the experts. That alternative may result in less internal space than the subject proposal due to the constraints of the site and the existing buildings. But overall I am convinced the respondent's evidence has the greater weight, and under the applicable statute and controls the proposal would result in unacceptable impacts. Issues 1, 2, 3, 4, 5, 7, 9, 12 and 13 are determinative. 63 The Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits A, C, D, 6, 9, 11, 12 and 13. 3. No Order as to costs. ___________________ K G Hoffman Commissioner of the Court 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.