Land and Environment Court of New South Wales CITATION : Fraser v Woollahra Council [2008] NSWLEC 1394 APPLICANT Vivian Fraser & Associates (NSW) Pty Ltd PARTIES : RESPONDENT Woollahra Council FILE NUMBER(S) : 10419 of 2008 CORAM: Brown C KEY ISSUES: Development Application :- alternations and additions to existing church hall - heritage impact - traffic and parking - noise LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 DATES OF HEARING: 15,16/09/08 DATE OF JUDGMENT: 17 September 2008 APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Pickles, barrister SOLICITORS HWL Ebsworth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 17 September 2008 10419 of 2008 Vivian Fraser & Associates (NSW) Pty Ltd v Woollahra Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of DA 755/2005 for alternations and additions to the existing church hall at 331 Old South Head Road, Watsons Bay (the site). 2 The issues raised by the council relate to the impact on the setting of the existing heritage building on the site, the impacts of additional traffic and potential noise impacts on adjoining residential development. These concerns were supported by a number of local residents who provided evidence on site. While 35 issues were raised by the residents (based on the council's Statement of Facts and Contentions), I understand their major concerns to be those raised by the council. The site 3 The site is located on the northern and eastern sides of Old South Head Road and has a site area of 7,511 sq m. It has a curved frontage to Old South Head Road of 174.8 m, an eastern side boundary of 112.5 m and a northern boundary of 58 m. The site falls approximately 8 m from south to north and 8.7 m from east to west. 4 The site contains St Peters Anglican Church, a church hall, cottage and rectory. A bitumen car parking area is located in the middle of the site with vehicular access via the southern frontage. Single residential dwellings of mostly two-storey construction with landscaped settings are located on the opposite side of Old South Head Road. The proposal 5 The proposed alterations and additions to the existing church hall involve the retention of the majority of the fabric of the building with some adjustment to the floor levels to provide a consistent level throughout the building. The additions to each elevation extend from the wall below eave height. A deck is to be provided to the northern elevation, a parishioner's tearoom and entry area to the western elevation, administration offices, a rector's office and children's youth room to the southern elevation and toilets, meeting room and kitchen to the eastern elevation. The existing hall has an area of 187.06 sq m. The proposal provides for an additional area of 248.82 sq m providing the hall with an area of 435.88 sq m. The proposed external decks have an area of 57.6 sq m. 6 The proposed extensions are to provide better facilities at the church than currently exist. The current activities conducted at the church are to remain unchanged. Relevant planning requirements 7 The site is within Zone 5 (Special Uses-Church) under Woollahra Local Environmental Plan 1995 (LEP 1995). The church hall is an ancillary use to the principal use of the site as a church and is permissible within the zone. 8 St Peters Anglican Church is listed as a heritage item under LEP 1995. The listing on the Schedule of Heritage Items lists "St Peters Anglican Church - church, bushland to the west of the church, "Grreycliff" memorial gates". The church hall is not mentioned on the statement of significance on the inventory sheet. The properties at 272, 333 and 335 Old South Head Road and Gap Park are in the vicinity of the site and are heritage items under LEP 1995. The site sits within a wider context of heritage items that form a continuum of significant open space to the south; Christison Park, the Macquarie Lighthouse, the Signal Station and to the north; the South Head Sydney Harbour National Park. 9 Clause 2(2) provides objectives of LEP 1995 and cl 8(5) provides that consent shall not be granted unless development is consistent with the plan objectives and zone objectives. Clause 27 provides specific requirements for development in the vicinity of heritage items, heritage conservation areas and cl 28 provides requirements for activities within a heritage conservation area. 10 The site is within the Church Group Precinct - Precinct B of the Watsons Bay Heritage Conservation Area Development Control Plan (the DCP). The relevant parts are Pt 3, B.1 C1 - Topography and Vegetation, B.3 C3 - Views and Vistas, B.4 C6 and C8 - Significant Items, B5.3 C13 - Building Forms, B.5.4 C15 - Building Character and B.6 Landscaping and Private Open Space and Pt 4, 4.5, 01 to 06 - Views and Vista objectives. The heritage impact The evidence 11 On the heritage issues, Mr Robert Staas provided evidence for the applicant and Mr Zoltan Kovacs provided evidence for the council. They provided a joint statement that identified the areas of agreement and disagreement. There was agreement that views from public areas to the church and its bell tower are not affected by the proposal. Also, the open terrace at the northern end of the church hall is acceptable as are the additions to the east and the proposed landscaping. Where Mr Staas and Mr Kovacs disagree was the extent of the proposed western and northern extensions and the impact on the significance and setting of the church building and the meaning of the group of heritage listed items. 12 Mr Kovacs states that the proposal does not adopt the fundamental conservation principle of a cautious approach. In his view, a more acceptable outcome would be achieved through tighter planning and better functional organisation of the requirements of the church. This could be achieved through development being limited to the interior of the hall and to areas behind the hall where the additional bulk cannot be easily experienced in the visual setting of the church. Overall, Mr Kovacs considers that by doubling the size of the hall, the relationship with the church will be inappropriate as it will dominate and overwhelm the church particularly when interpreted from Old South Head Road, the entrance to the site and the lawn area next to the car park. 13 Mr Staas comes to a different conclusion. He states the design has considered the potential impacts and achieves a functional outcome that goes some way to improving the visual relationship between the church and church hall by creating a lower and more open structure that provides a transition to the ground. The church is small but visually distinctive and sits in a relatively isolated setting, separated from the church hall by a substantial physical and visual separation that allows it to be understood independently of the church hall. This relationship is well understood. Overall, the perception of the church in the round will not be affected because the proposal maintains separation from the east side of the church on the lower lawn and the lower lawn area. Findings – heritage impact 14 In balancing the competing opinions of Mr Staas and Mr Kovacs and with the benefit of the site view, I am satisfied that the proposal is acceptable in heritage terms. While Mr Kovacs' position is not without some merit, the question to be answered by the Court is whether the proposed development is acceptable and not whether an alternate design is more acceptable. Mr Kovacs' concerns were generally limited to the bulk and scale of the proposed elevations created by the southern and western additions to the church hall. In his view, these areas of the development unacceptably compromise the relationship of the church hall with the church. 15 While these extensions will encroach into the existing view corridor from Old South Head Road, I am satisfied that the church will still able to be fully viewed and understood from this location. The westerly building extension is some 3.5 m and the eave extension is some 5 m. The building extension in this area is made up largely of glass and I agree with Mr Staas that this presents a light visual character and minimises any conflict with the church building. I also accept that the curtilage of the church is largely unaffected by the proposed development and will maintain a minimum setback of 22 m from the church hall, after modification. 16 I am satisfied that the church will still maintain its independence and necessary separation from other buildings on the site and have an appropriate curtilage and setting. I do not accept Mr Kovacs' evidence that the proposal will dominate and overwhelm the church. At worst, the view corridor from Old South Head Road will be reduced by a small amount with other viewing areas unchanged. 17 While there was a consistent concern by the residents that the additional area sought by the applicant was unnecessary, I do not accept that this should be given any meaningful weight. Clearly it is open for the church to address the need for an additional facility in a way that the church thinks is appropriate. The acceptability or otherwise of this choice is subject to a merit assessment. In this case the merit assessment did not raise any matter that would support the refusal of the application. 18 Mr Kovacs also sought a reduction in the eave on the western elevation to improve sightlines to the church; however, the reduction would achieve little overall benefit when considered against the unbalanced building form that would result. Consequently, condition 3 of the council's conditions can be deleted. 19 In accordance with cl 8(5) of LEP 1995, I find that the proposed development is consistent with the plan objectives in cl 2(2)(g)(ii) and cl 2(2)(k)(iii). 20 In accordance with cl 27 of LEP 1995, I find that the likely effect of the proposed development on heritage items and heritage item group in the vicinity is acceptable and would not be a reason to refuse the development application. 21 In accordance with cl 28(2) of LEP 1995, I find that the effect on the heritage conservation area is acceptable and not a reason that would warrant the refusal of the development application. 22 There are also no requirements in the DCP that would warrant the refusal of the development application. Traffic and parking The evidence 23 On the traffic and parking issues, Mr John Cody provided evidence for the applicant and Mr Chris Hallam provided evidence for the council. Mr Cody provided a Parking Management Plan (PMP) that relied on parking surveys on the site and nearby area and a schedule of recurring activities and intermittent activities at the church identifying the number of people attending activities at the site and the times of their attendance. 24 The salient points of the PMP provide for: o 13 sealed car parking spaces, o 27 unsealed overflow car parking spaces, o 54 sealed and unsealed spaces when attendees are greater than 80 persons, o the use of a parking supervisor when parking demand exceeds 30 spaces,and o distribution of details of car parking requirements to members of the church congregation. 25 Mr Cody and Mr Hallam agreed that the implementation of the PMP would satisfactorily address parking and traffic issues. Findings – traffic and parking 26 I concur with the agreed position of Mr Cody and Mr Hallam. I also accept Mr Green's submission that the PMP will provide a net benefit for local residents, as currently there are no limitations on the activities conducted by the church including the use of on-site parking. While on-street parking is likely to continue in a limited form, I accept that the PMP is a positive attempt to minimise impacts on nearby residential properties. Noise The evidence On the noise issue, Mr Peter Noland provided evidence for the applicant and Mr Louis Challis provided evidence for the council. There was general agreement between the experts that noise could be adequately controlled to satisfy the appropriate criteria in the New South Wales Industrial Noise Policy . Finding - noise 27 There was some disagreement between Mr Challis and Mr Noland on the appropriate conditions, however, I accept that the conditions proposed by the applicant for the lobby area through the imposition of varying absorption coefficients for the range of octave band frequencies is appropriate in this case. 28 As was the case for the traffic and parking, I acknowledge that the proposed noise conditions are likely to provide a net benefit to the local residents, even considering there was no evidence to suggest that noise from the church hall has been a problem in the past. I adopt the comments made by Mr Noland who states that the proposed additions to the church hall will provide additional noise attenuation through the virtual surrounding of the existing church hall that currently provides little noise attenuation because of it's construction. When combined with the entry foyer sound lock, a new roof containing sound insulation and, importantly, conditions on operating hours and target noise emission levels potential noise impacts are significantly improved. Conditions 29 The following conditions were in dispute: 30 Condition 2B - this condition places a time limit on the use of amplified music. The applicant proposes 11.00 pm while the council proposes 10.00pm. Considering that the activities are associated with a church, the acoustical measures proposed in the application and the lack of objection in the past, I accept that 11.00 pm is an appropriate time for Friday and Saturday nights, however, 10.00 pm in my view is more appropriate for Sundays to Thursdays. The condition will be amended to reflect this finding. 31 Condition 22(b) – this condition addresses the operating times for the church hall: The council seeks the building to be vacated no later than 11.00 pm, however the applicant seeks 12 midnight. As was the case for amplified music, I accept that 12 midnight is acceptable on Friday and Saturday nights, however 11.00 pm is more appropriate for Sunday through to Thursdays. 32 Condition 22(b) also requires the use of the church hall to cease at 10.00 pm, however I prefer a condition to address a single time when the premises are to be vacant rather than a time when the activities in the hall are to cease and a different time when the premises are to be vacant. Consequently, the council's requirement for activities to cease at 10.00 pm should be deleted. Orders 33 The Orders of the Court are: 1. The appeal is upheld. 2. DA 755/2005 for alterations and additions to an existing church hall at 331 Old South Head Road, Watsons Bay is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 10, A and B. ___________________ 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.