Land and Environment Court of New South Wales CITATION : Paterson Bowkett Holding Pty Limited v Woollahra Municipal Council [2007] NSWLEC 505 APPLICANT: PARTIES : Paterson Bowkett Holding Pty Limited RESPONDENT: Woollahra Municipal Council FILE NUMBER(S) : 10205 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application - Easements :- Overshadowing of neighbouring dwelling LEGISLATION CITED: Woollahra Local Environmental Plan 1995, (WLEP) Paddington Development Control Plan 1999, (PDCP) CASES CITED: Paterson Bowkett Holdings Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 370 DATES OF HEARING: 13/08/2007 EX TEMPORE JUDGMENT DATE : 13 August 2007 APPLICANT: Ms R Green, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Spiegel and Associates RESPONDENT: Mr M Connell, solicitor SOLICITORS: Home Wilkinson Lowry, Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 13 August 2007 10205 of 2007 - Paterson Bowkett Holding Pty Limited v Woollahra Municipal Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Woollahra Municipal Council (the council) of a development application to demolish some of the existing buildings and to erect a new mixed-use building at Part Lot A, DP 107026 and Lot 16, DP 259058, being Nos 500-502 Glenmore Road, Edgecliff. 2 I visited the land in company with the parties on the morning of the hearing and I heard from Ms A Cordwell. 3 I have concluded that the application is now one that the Court may approve and as the issues have now been addressed, consent subject to conditions is indicated. The land 4 The land is situated near the New South Head Road end of Glenmore Road, on the corner of Reddy and Artlett Streets. It is irregular in plan shape with an area of 254.2m2; a northeastern frontage to Glenmore Road of 8.2m; a northwestern (side Reddy Street) boundary of 31.4m; a southeastern (side) boundary of 31.15m; and a southwestern (rear Artlett Street) boundary of 8.6m. 5 The land falls from the rear to the front boundary on Glenmore Road. There is a large Eucalyptus tree located in the existing courtyard towards the centre of the land. 6 Erected on the Glenmore Road frontage is the existing two-storey Victorian terraced building at No 500 Glenmore Road and a single-storey commercial structure at No 502 Glenmore Road. Both buildings date from a key period of significance for the Paddington heritage conservation area and display the typical form and features of contributory items of the conservation area. Erected on the rear of the subject land is a warehouse, fronting onto Reddy and Artlett Streets. 7 The land is within the Paddington Conservation area. The character of the precinct is best described as having: …variable and intricate street, lane and pedestrian network, a land use character which is predominantly residential but which also contains a mix of shops and hotels, many of which are located on corners, some commercial buildings and a few remaining light industrial and warehouse style buildings. Relevant planning controls Woollahra Local Environmental Plan 1995, (WLEP) 8 Under the provisions of the WLEP the land is zoned part Residential 3(b) and part Special (A.R.R) and the proposal is permissible with consent. Relevant provisions include: · Clause 11: Floor space ratio. · Clause 2(2)(g): in relation to heritage conservation. · Clause 2(2)(d): with regards to traffic and transport. · Clause 12: Height of buildings. · Clause 14: Acquisition and development of land reserved for roads. Paddington Development Control Plan 1999, (PDCP) 9 Of relevance are the objectives, guidelines and controls under: · Part 5.1.1 of the PDCP: Street frontages. · Part 5.1.2: Side Elevations to Street and Lanes. · Part 5.1.4: Roofs. · Part 5.1.5: Site Coverage, Setbacks and Levels. · Part 5.1.7: Height, Bulk and Scale. · Part 5.1.8: Acoustic and visual privacy. · Part 5.2.2, 5.2.3, 5.2.4 and 5.2.8: Chimneys, Windows, doors and shutters, Verandahs and Balconies, Materials and details. · Part 5.2.6 relating to Car Parking and Driveway Access. · Part 5.3.2: Multi Storey Terrace Houses. · Part 5.4: Infill Development. Edgecliff Commercial Centre Development Control Plan, (EDCP) 10 Of relevance under EDCP are: · Clause 4.1 relating to Building Height. · Clauses 6.3, 6.6, 6.8, and 6.9 relating to Building Design. Development Control Plan for off-street car parking and servicing facilities, (PDCP) 11 The PDCP is of relevance for car parking and servicing. The proposal and its history 12 An amended development application No 2006/565/1 was lodged with the respondent council on 22 December 2006 to restore the terraced house facing Glenmore Road, restore the contributory building on the corner of Glenmore Road and Reddy Street and to demolish and rebuild the buildings to the rear. The original development application had been submitted to the council on 4 September 2006. 13 It is proposed to retain the contributory building located on the corner of Glenmore Road and Reddy Street and to retain the existing two-storey terraced building at No 500 Glenmore Road and to erect a part two-storey and part three-storey mixed-use development with a floor space ratio of 1.65:1. The proposal would exceed the allowable floor space ratio of 1.5:1 and would partially comply with the setback requirements. 14 The proposal includes on the ground floor: · commercial unit fronting Glenmore Road; · vehicular entry and three car spaces; and · removal of the existing tree and courtyard. 15 On the first floor: · commercial unit fronting Glenmore Road; · two-storey unit to the rear of the subject property including a balcony along Reddy Street; 16 On the second and third floor a balcony fronting Reddy Street is proposed. 17 The proposal is now described in drawings prepared by Sorin Dascalu & Associates Pty Limited Architects, filed with the Court on 15 June 2007 being Drawing Nos 435/1 and 435/2 dated 8 June 2007. 18 Other documents that accompanied the development application included: · Statement of Environmental Effects December 2006. · Shadow Diagrams prepared by Clement & Reid Pty Limited, Project Surveyors Sheet 1 of 2. · Shadow diagrams for existing situation Sheet 1 of 2. These were amended later by Sheets 1 and 2 dated 12 June 2007, and Sheet 1/1 (Elevation 1:50) dated 12 June 2007 · Shadow diagram for proposed situation. · TEF Consulting: Traffic Environmental & Forensic Engineers Letter dated March 12 2007. · PE Consulting Building Services Engineers Energy Conservation Report dated August 2006. · Archnex Designs Letter dated February 2 2007. · Statement of Heritage Impact August 2006. 19 The maximum height of the proposal would be about 10.6m and the allowable would be 8.5m. The proposed setbacks would be: Front (North-eastern): 0m; Rear (southwestern): 0m; Side (northwestern): 0m; Side (southeastern): 0m. Other development applications 20 DA 2005/552/1 to strata subdivide the land into two lots was approved by the council on 3 November 2005. 21 DA 2004/316/1 to demolish the existing buildings and to erect a of mixed residential and commercial use building and to strata title subdivide was refused by the council on 18 November 2004. The Land and Environment Court dismissed this application on 10 June 2005: Paterson Bowkett Holdings Pty Ltd v Woollahra Municipal Council [2005] NSWLEC 370 [Note: Exhibit 1, behind contents page]. 22 DA 2003/745/1 to demolish the existing buildings and to erect a new mixed-use residential/ commercial complex of four units, two commercial and two residential lots with associated parking and to strata title subdivide was withdrawn on 20 April 2007. Notification 23 The present replacement development application was notified to nearby owners and occupants on 21 February 2007 and the council received two objections. The original development application had been advertised on 13 September 2006. The council's decision 24 On 23 April 2007 the replacement development application was recommended to the Development Control Committee of the council for refusal for the reasons that are reflected in the issues. The hearing 25 The appeal was filed on 13 March 2007 and is a deemed refusal. 26 At the hearing the court heard evidence on behalf of the respondent council from Ms A Cordwell, resident of No 7/494 Glenmore Road Paddington. 27 On behalf of the applicant Ms M D Laidlaw, consultant town planner, gave evidence. 28 Ms L Apostolou, Assessment Officer, of Woollahra Council prepared the statement of basic facts dated 20 April 2007. The issues 29 On 2 April 2007 the council filed a statement of issues. 1. The existing window on the Northern Elevation (Reddy Street) to the 2-storey contributory building is to be retained. 2. The proposed 2-storey building line as viewed from the Northern Elevation (Reddy Street) is to be set back to align with the extent of the 2-storey contributory building. 3. The proposed window located on the Northern Elevation (Reddy Street) to the single storey portion of the building is to reflect window sizes and proportions outlined under Part 5.2.3 Windows, Doors and Shutters in the Paddington DCP. 4. All submitted drawings are to reflect the requirements outlined in the Development Application Guide and Check List, a copy of which is available at www.woollahra.nsw.gov.au. All existing and proposed works are to be clearly demonstrated on the drawings. A SEPP 1 objection is required for the floor space ratio exceedance. 5. Matters raised in written submissions to the Council from the Paddington Society and Alison Cordwell of 7/494 Glenmore Road, Paddington (copies previously supplied). 30 When the appeal was heard, the parties were agreed that Issues 1, 2 and 3 could be adequately addressed by condition. In respect of Issue 4 the plans were redrawn. In respect of Issue 5, a new Condition 2(d) as set out below addressed in part the concerns of Ms Cordwell. Thus the issues were resolved. The evidence and findings Sunlight access 31 The height above natural ground level of the western elevation of the proposal on Artlett Street would vary and would readily comply with the 12m-height limit of cl 12 of the WLEP at the western end of the land. The height of the top-of-gutter of the existing building outside Ms Cordwell's kitchen window is shown on the survey as 22.72m AHD. The sill level of Ms Cordwell's kitchen window was slightly higher at around 23m AHD. The finished floor level of the second floor of the proposal is shown as 23.65m AHD. 32 On the site inspection it was clear that the sunlight and daylight penetration to the two kitchen windows of Ms Cordwell's unit would be greatly improved were the second floor splayed or curved to ensure that the proposed corner were setback a further 700mm towards the east. 33 The applicant agreed to a condition to this effect and Ms Cordwell expressed a degree of satisfaction for such an amendment, despite it not giving complete access to sunlight to her kitchen windows. 34 Given that the application would comply with the overall height controls for this part of the site, I am satisfied that the agreed amendment would be a reasonable balance of the sharing of development potential of the land and access to sunlight and amenity for the neighbour. 35 I would not refuse the application for reason of loss of sunlight. The applicant proposes to retain and refurbish the contributory buildings fronting Glenmore Road. 36 I also consider that the concurrence of the Roads and Traffic Authority may be assumed in respect of Lot 16 on the corner of Glenmore Road and Reddy Street, 37 There were no other issues that were outstanding and for the above reasons, the appeal is upheld. Conditions 38 The conditions are those in Exhibit 7 as amended during the hearing. 39 A new condition to address in part the concerns of Ms Cordwell for sunlight access is added at Condition 2(d): The southeastern wall of the residential unit at the second floor above the garbage and recycling area on the ground floor shall be cut back 700mm in an eastern direction, with that point then connected by either a curved or splayed wall, to a point a minimum of 1500mm north of the southwest corner. Orders 40 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. The State Environmental Planning Policy No 1 objection as to floor space ratio is upheld. 3. Development application No 2006/565/1 lodged with the respondent council on 22 December 2006 as amended, to demolish some of the existing buildings, restore the terraced house facing Glenmore Road, and to erect a new mixed-use building at Part Lot A, DP 107026 and Lot 16, DP 259058, being Nos 500-502 Glenmore Road, Edgecliff, is approved subject to Conditions 1 to 65 in Annexure A. 4. The exhibits except for Exhibits A, B, C, D, 6, 7 and 8 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.