Land and Environment Court of New South Wales CITATION : GSA Planning v Woollahra Municipal Council [2007] NSWLEC 652 APPLICANT: PARTIES : GSA Planning RESPONDENT: Woollahra Municipal Council FILE NUMBER(S) : 10802 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Terraced house: heritage LEGISLATION CITED: Woollahra Local Environmental Plan 1995, (WLEP) Environmental Planning and Assessment Act 1979, ss 79C and 96(6) DATES OF HEARING: 4 October 2007 EX TEMPORE JUDGMENT DATE : 4 October 2007 APPLICANT: Mr V Conomos, solicitor, SOLICITORS: LEGAL REPRESENTATIVES: Pike Pike & Fenwick, Lawyers RESPONDENT: Mr J P Merlino, solicitor SOLICITORS: Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 4 October 2007 10802 of 2007 - GSA Planning v Woollahra Municipal Council JUDGMENT 1 This involves an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, to delete Condition 2 imposed by Woollahra Municipal Council (the council) when approving a modification application. Condition 2 would restrict the size of a first floor roof deck to the existing terraced house at Lot 3, DP 34035, being No 18 Edgecliff Road, Woollahra. 2 Condition 2 of the original consent (DA 175/2003/1 approved 2 September 2003) reads: The proposed roof terrace to the front of the dwelling is to be deleted from the proposal to protect the heritage significance of the existing front form of the dwelling and the significance of the subject group of dwellings located along this section of Edgecliff Road. A balustrade is to be provided to the northern fenestration of the living/study to the first floor to prevent access to the northern roof area. Details are to be submitted with the Construction Certificate application. 3 I visited the land in company with the parties on the morning of the on-site hearing. 4 I have concluded that the with a nominal reduction in the size of the proposed deck in s 96 modification application DA 175/2003/2, partly along the lines proposed by the council, the modification application should succeed. The land 5 The land on which the existing terraced house stands is situated on the southern side of Edgecliff Road about 10m to the west of Tindale Lane. It is the third terraced house west of that lane. The land has a skewed frontage of 5.26m to Edgecliff Road, a depth of around 30m and an area of 154m2. There is rear lane access from Icasia Lane. 6 Erected on the land is a north-facing two-storey terraced house for which ground and first floor additions were approved on 2 September 2003 by consent DA 175/2003/1. The terraced house has three bedrooms, two at ground level, with open plan ground floor living at the rear. There is a south-facing courtyard at the rear of the living area and on the far side of this courtyard is an open car space, accessed from Icasia Lane. The terraced house forms one of a row of ten, of the Victorian Italianate style architecture. 7 The proposed roof deck would have a width of 4.2m across the frontage between the two protruding side parapet walls and a depth from the access doors of 4.3m. The northernmost portion of the deck would be fitted with a 900mm deep bench seat across the 4.3m-width. The trafficable area of the deck would be 14.28m2. The deck would be setback 3.4m behind the 1m-high front semi-transparent open balustraded parapet. Relevant planning controls Woollahra Local Environmental Plan 1995, (WLEP) 8 Under the provisions of the WLEP the land is zoned Residential 2(b) and the proposal is permissible with consent. 9 The terraced house is a contributory item within the Grafton Heritage Conservation Area under the WLEP. The modification application and its history 10 The modification application No 175/2003/2 of the development application was lodged with the respondent council on 27 March 2007, to delete Condition 2 of the DA 175/2003/1. In approving the modification application the council sought to restrict the size of a first floor roof deck to the existing terrace house. Notification 11 The modification application was notified to nearby owners and occupants and the council received no objections to the deck, during notification period of the original DA or when the Section 96 modification application. One objection was subsequently received to the original DA concerning loss of sunlight that was unrelated to the deck. The council's decision 12 The Section 96(2) modification application was approved on 10 July 2007, subject to replacement of the original Condition 2 with the following new condition: 2. Modification of details of the development (s80A(1)(g) of the Act) The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulations, must detail. The deck is limited to a length of 2.1 metres, with an additional 900mm of seating provided at its northern end, and should not extend in width greater than the projecting walls to the north facing fenestration to the approved first floor study/living room. The original principal roof to the front of the terrace house is to be retained and should not be altered or penetrated. Privacy screens can be provided to a height of 1.7 metres above the finished floor level of the deck to its east and west ends. The hearing 13 The appeal was filed on 17 August 2007 against the decision to impose a new Condition 2 in the notice of determination dated 10 July 2007. 14 At the hearing the Court heard evidence on behalf of the respondent council from Mr Dimitri Lukas, Senior Assessment Officer, Woollahra Council. 15 On behalf of the applicant Mr Ian Stapleton, heritage consultant, gave evidence. The acoustic engineer Mr Rodney Stevens, principal consultant to RSA Acoustics and Mr George Karavanas, town planner of GSA Planning, also supported this evidence. The contentions 16 On 13 September 2007 the applicant filed a statement of contentions: 1. …the deletion of Condition 2 will not give rise to any non-compliance with any numeric requirement within any State Policy, Woollahra LEP 1995 or Woollahra Heritage Conservation Area DCP 2003; 2. …the deck structure/ balustrading arising out of deletion of Condition 2 will not be visible from the southern side of the Edgecliff Road footpath (same side as the terrace) or from the northern (opposite side) of Edgecliff Road; 3. …[the] deletion of Condition 2 will not result in a proposal which would be detrimental to the integrity of the terrace or row of terraces; 4. …there is virtually no impact to the streetscape arising from deletion of Condition 2, [and] will have no streetscape impact upon the form and appearance of the host building or its neighbours; and 5. …[the] use of the deck as originally proposed (ie with Condition 2 deleted) would not be responsible for adverse amenity impacts in terms of visual or acoustic privacy. 17 Heritage impacts were the salient issues. The evidence and findings Heritage 18 The parties were agreed to a compromise design that would restrict the floor area of the proposed deck to 3.4m x 2.0m in line with the edge of the existing opening. The parties also agreed to the proposal to provide a 900mm wide bench-seat on the west, north and east sides of the deck. 19 It also agreed that an acoustic glazed screen should be erected on the bench-seat back to a height of 1.2m above the floor level of the deck. The floor level of the proposed deck would be level with the northern part of the floor of the study. 20 Mr Stevens principal consultant to RSA Acoustics, confirmed that the height necessary for acoustic attenuation of any noise likely to be generated by people using the deck could be satisfactorily met by a glazed screen to 1.2m in height above the deck. 21 Mr Stapleton considered the heritage significance of the terraced house would be maintained by the amended proposal. 22 I accept the evidence in relation to the compromise solution that the parties have now agreed to, and for the above reasons, the appeal is upheld. Conditions 23 The conditions are those in Exhibit 2 as amended during the hearing. Orders 24 My orders are: 1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld. 2. The modification application No 175/2003/2 lodged with the respondent council on 27 March 2007 in respect of development application No 175/2003/1 in relation to the size of a first floor roof deck to the existing terraced house at Lot 3, DP 34035, being No 18 Edgecliff Road, Woollahra, is approved subject to Conditions 1 to 33 Annexure A. The exhibits except for Exhibits A and 2 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.