Land and Environment Court of New South Wales CITATION : Quincy Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 1188 APPLICANT Quincy Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10054 of 2009 CORAM: Tuor C KEY ISSUES: SECTION 96 MODIFICATION :- to modify a development consent. Impact on significane of heritage item and conservation area. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 DATES OF HEARING: 24 April 2009 EX TEMPORE JUDGMENT DATE : 24 April 2009 APPLICANT Mr D O'Donnell, solicitor of Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 24 April 2009 10054 of 2009 Quincy Pty Ltd v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent DA836/2007 (the consent) for 76 Queen Street Woollahra (the site). 2 The consent approved the use of the premises as a shop, proposed signage and alterations, additions subject to conditions. 3 The s 96 application sought to amend conditions A4 and C1 of the consent to permit a new window within the enlarged opening in the first floor of the rear elevation. Condition A4 requires: This approval does not give consent for any unauthorised works which have already carried out. These comprise of: three air conditioning units located to the rear of the subject building within the side breezeway, the removal of the original first floor window in the rear elevation, the enlargement of the original first floor rear window opening, the insertion of a first floor external shutter to the rear elevation and the insertion of an external advertising blind to the first floor window in the front façade. 4 Condition C1 requires: 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 Regulation, must detail; a. to ensure the proposal does not detrimentally impact upon the heritage significance of the Heritage Item, Heritage Conservation Area or the streetscape the proposed first floor window in the streetscape in the rear elevation shall be deleted. 5 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions. The site is identified as a heritage item and is within a conservation area under Woollahra Local Environmental Plan 1995 (WLEP 1995). Woollahra Heritage Conservation Area Development Control Plan (Woollahra DCP) provides objectives and control for alterations and additions to heritage items and buildings within a conservation area. 6 The Court had the benefit of a site visit and heard expert heritage evidence from Mr M D'Allessio, for the council and Mr C Lucas, for the applicant. 7 The experts prepared a joint report where the key difference was that Mr D'Allessio considered that the original opening and window should be reinstated. Whereas Mr Lucas considered that a new window which is sympathetic to the existing building could replace the unusable and inappropriate roller shutter that currently exists. 8 The experts have held further discussions since the joint report was prepared. These further discussions have resulted in a sketch plan (Exhibit A) which provides details of the proposed changes to the opening on the first floor of the building. The experts have agreed that, subject to the changes shown in Exhibit A, the proposal will have an acceptable impact on the heritage significance of the item and of the conservation area, particularly when assessed against the detrimental impact that currently results from the existing roller shutter in the opening. 9 On this basis I am satisfied that the application meets the requirements in WLEP 1995 and Woollahra DCP and that the proposed modification can be approved. Orders 1. The appeal is upheld. 2. The s 96 application to modify DA/836/2007/1 to use 76 Queen Street Woollahra as a shop, proposed signage and alterations and additions is approved. The consent is modified as set out in Annexure A. 3. The exhibits except Exhibits A and D may be returned. ___________________ Annelise Tuor 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.