Land and Environment Court of New South Wales CITATION : Sanderson E A v Woollahra Municipal Council [2007] NSWLEC 76 APPLICANT: PARTIES : Elizabeth Ann Sanderson RESPONDENT: Woollahra Municipal Council FILE NUMBER(S) : 10964 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Heritage significance, design and aesthetics of the carport and the front door Woollahra Local Environmental Plan 1995, (WLEP) State Environmental Planning Policy No. 55 - Remediation of Land, (SEPP55) LEGISLATION CITED: Woollahra Heritage Conservation Area Development Control Plan 2003, (HCADCP) Development Control Plan for off streetcar parking provision and servicing facilities and Woollahra Access Development Control Plan, (ADCP) Environmental Planning and Assessment Act 1979, ss79C and 96 DATES OF HEARING: 13/02/2007 DATE OF JUDGMENT: 20 February 2007 APPLICANT: Mr Robert Harper, SC, with Mr Marcus Pesman, solicitor instructed by Mr Geoff Schrader, solicitor LEGAL REPRESENTATIVES: SOLICITORS: Schraders Lawyers RESPONDENT: Mr M Connell, solicitor SOLICITORS: Home Wilkinson Lowry Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 20 February 2007 10964 of 2006 - Elizabeth Ann Sanderson v Woollahra Municipal Council JUDGMENT 1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Woollahra Municipal Council (the council) of a modification of development consent to alter and add to a terraced dwelling house at Lot 1, DP 136824 being No 32 Holdsworth Street, Woollahra. 2 I visited the land in company with the parties on the morning of the hearing and heard from local residents and experts on both sides. 3 I have concluded that the door facing Holdworth Street in the front façade of the original terrace contributes to the heritage significance of the conservation area and should not be changed to a window as sought, and the carport roof as proposed would dominate the streetscape to its detriment. As a result the appeal is dismissed. The land 4 The land is situated on the western side of Holdsworth Street, near to its intersection with Morrell Street. The land is largely rectangular in plan with an area of 248.1m2. It has an eastern frontage to Holdsworth Street of 9.015m; a northern common boundary with No 34 Holdsworth Street of about 27.42m; a common boundary with 28 Holdsworth Street of about 27.24m and a common boundary with Nos 27 and 29 Spicer Street of about 9.1m. 5 Existing on the land is a two-storey Victorian terrace house, which is listed as a contributory item within the West Woollahra Precinct of the Woollahra Heritage Conservation Area. The dwelling comprises part of a group with the adjoining dwellings at Nos 34-38 Holdsworth Street. Relevant planning controls Woollahra Local Environmental Plan 1995, (WLEP) 6 Under the provisions of the land is zoned Residential 2(a) and the proposal is permissible with consent. Relevant are: · Clause 2: aims and objectives · Clause 8: development control tables · Clause 12AA: objectives of maximum building height development standards · Clause 12: height of buildings · Clause 25: water, wastewater and stormwater · Clause 25D: acid sulfate soils; and · Clause 28: heritage conservation areas. State Environmental Planning Policy No. 55 - Remediation of Land, (SEPP55) 7 SEPP55 applies to the land. Woollahra Heritage Conservation Area Development Control Plan 2003, (HCADCP) 8 Relevant provisions of the HCADCP are: · Part 1- Introduction · Part 2 - Understanding the context · Part 3 - Private domain: West Woollahra precinct controls; and · Part 3 - Private domain: Specifically Sections 3.2.1, 3.2.3, 3.3.4, 3.4.3, 3.4.4, 3.4.5, 3.4.9, 3.4.12, 3.4.13, 3.4.14, 3.4.15 and 3.4.16 · Part 4 - Public domain. Development Control Plan for off streetcar parking provision and servicing facilities and Woollahra Access Development Control Plan, (ADCP) 9 The ADCP applies to the land. The proposal and its history 10 Approval is sought to modify DA 355/03, dated 7 October 2003, under s 96 of the Environmental Planning and Assessment Act 1979. The original approval granted consent to part demolition, alterations and additions to the dwelling on the land. 11 The original modification application proposed the following: · New carport over approved hardstand parking space. · An amendment to the design of the approved sliding and pedestrian gates on the eastern boundary. · New front fence. · Rendering of the front façade. · The removal of the original front entry and its replacement with a window (and by implication deletion of condition 3). · New timber shutters to the ground and first floor windows in the eastern elevation. · New metal balustrade to first floor balcony in eastern elevation. · Removal of the Magnolia from front yard. 12 The new front fence is no longer sought as it was decided to reuse the existing fence. The rendering to the front façade is not longer sought. The shutters are subject to another modification application and an amended design was received on the 21 August 2006. The modifications made in the amended plans include: · A reduction in the length of the carport (and consequential increase in the setback of the carport from the eastern boundary). · The retention of the existing metal balustrade to the first floor balcony, rather than its replacement with a new metal balustrade. · The deletion of the timber screens to the windows in the eastern elevation. 13 DA335/2003 was lodged on 12 May 2003 proposing to partly demolish, to alter and add to the existing terraced dwelling on the land. The Application Assessment Panel recommended approval of this development application on 7 October 2005, subject to conditions of consent. 14 A previous s. 96 application (DA2003/35512) sought approval for the reinstatement of the original roof to match the roof of No 34 Holdsworth Street to the north: alterations to the southern wall of the ground floor of the principal building form: removal of Cordyline tree previously scheduled for transplantation in Condition Nos. 7 and 8 and replacement of existing western boundary brick wall with rendered and painted wall of same height. The Development Control Committee approved this modification application on 7 March 2005. 15 The present Section 96 application to modify DA2003/355/3 was lodged with the council on 24 April 2006. Notification 16 The application was notified to nearby owners and occupants in accordance with the Council's Advertising and Notifications DCP on about 18 May 2005 and the council received five objections from: · J Milne of 29 Spicer Street, Woollahra; · S Falkiner of 28 Holdsworth Street, Woollahra; · National Trust; · G Prisk of 7 Morrell Street, Woollahra; · Craig Milne & Co of L9/185 Elizabeth Street, Woollahra. (Two submissions were made on behalf of owners of Nos 27 and 29 Spicer Street). 17 The objectors raised the following issues: · Adverse impact on the historic character of the area; · Loss of historic features of dwelling including door and facade materials; · The works are better described as a 'garage' rather than 'carport' given the extent of enclosure; · Proposed works contrary to heritage controls; · Overshadowing; · Adverse impact on setting of adjoining dwelling; · Lack of space for maintenance; · Impact on structure of adjoining dwelling; · Security; · Carport roof and gap between buildings will be a leaf trap; · Unauthorised works have occurred; and · Development not constructed in accordance with requirements of consent. The council's decision 18 By notice dated 24 October 2006 the council refused the modification application for the following reasons: 1. The proposal would fail to satisfy Woollahra Local Environmental Plan 1995, Part 2 Clause 8(5) for the following reasons: · The variation to and the loss of original building fabric and the height and location of the carport would be detrimental to the existing building, it's setting and detrimental to the heritage conservation area. The proposal would be contrary to Clause 28(2) and contrary to the objectives of Clause 2(2)(g)(ii) and (iii). 2. The removal of the front entry door, the rendering of the front facade would be detrimental to the existing building, its original fabric and its setting and detrimental to the streetscape and the heritage conservation area. The proposal would be contrary to conservation practice. The proposal would fail to satisfy the provisions of Woollahra Heritage Conservation Area Development Control Plan Part 3.2.1 Control Cl and CS and Objectives 01, 02 and 03; Part 3.2.2 Control C1, C2, C3 and C5 and Objective 01; Part 3.2.4 Control C17 and Objectives 01 and 02; Part 3.3.4 Objective O1. 3. The proposed height and location of the carport would result in the parking area becoming the dominant element in the streetscape. The proposal would be contrary to the requirements of the Woollahra Heritage Conservation Area Development Control Plan Part 3.4.9 Control Cl and Objectives O1. 4. The second stacked parking space would fail to comply with the minimum size prescribed by Australian Standard 2890.1. 5. The proposal would not be in the public interest. The hearing 19 The appeal had been filed on 12 October 2006 and thus is a deemed refusal. 20 At the hearing the court heard evidence on behalf of the respondent council from: · Mr Z Kovacs, heritage consultant; · Mr T Ristevski, town planner of Woollahra Municipal Council; · Ms S Falkiner, resident of No 28 Holdsworth Street; and · Mr G Prisk, resident of No 7 Morrell Street. 21 On behalf of the applicant evidence was given by: · Mr A Popov, architect; · Ms C Smedley, architect; · Mr S Davies, heritage consultant; and · Ms K Gordon, town planner. 22 Mr M Schofield, Team Leader prepared the statement of basic facts dated 14 November 2006. The issues 23 On 14 November 2006 the council filed a statement of issues: 1. The proposed works to the main body of the dwelling will result in the loss of historic fabric, which will adversely affect its relationship with the other dwellings in the group and its contribution to the conservation area. Particulars i. The variation to and the loss of original building fabric would be detrimental to the existing building, its setting and detrimental to the heritage conservation area. The proposal would be contrary to Clause 28(2) of the Woollahra Local Environmental Plan 1995 and contrary to the objectives of Clause 2(2)(g)(ii) and (iii). This would also be contrary to Clause 8(5) of Woollahra Local Environmental Plan 1995; ii. The removal of the front entry door and rendering of the front facade would be detrimental to the existing building, its original fabric and its setting and detrimental to the streetscape and the heritage conservation area. The proposal would be contrary to conservation practice. iii. The proposal would fail to satisfy the provisions of Woollahra Heritage Conservation Area Development Control Plan Part 3.2.1 Control C1 and C5 and Objectives O1, O2 and 3; Part 3.2.2 Control C1, C2, C3 and C5 and Objective 01; Part 3.2.4 Control C17 and Objectives 01 and O2; Part 3.3.4 Objective O1. 2. The proposed carport will detract from the streetscape. Particulars The proposed height and location of the carport would result in it becoming a dominant element in the streetscape. The proposal would be contrary to the requirements of the Woollahra Heritage Conservation Area Development Control Plan , Part 3.4.9 Control C1 and Objectives O1. 3. The carport is of an inadequate size. Particulars The second stacked parking space would fail to comply with the minimum size prescribed by Australian Standard 2890.1. 4. The proposal has raised submissions from the following objectors: · Letter from Judith Milne of 29 Spicer Street Woollahra dated 18 May 2006. · Letters from Suzanne Falkiner of 28 Holdsworth Street Woollahra dated 19 May 2006 and 2 August 2006. · Letter from National Trust of Australia dated 22 May 2006. · Letter from Graeme Prisk of 7 Morrell Street Woollahra dated 19 May 2006. · Letters from Craig Milne & Co (on behalf of) Judith Milne of 29 Spicer Street Woollahra and Jane Burton-Taylor of 27 Spicer Street Woollahra dated 2 August 2006 and 19 July 2006. The objectors' submissions raise the following issues: · Heritage; · Design; · Aesthetics; · Security; · Streetscape; · Overshadowing; · Access and Maintenance. The proposal is not in the public interest Section 79C(1)(e) of the EPA Act. 24 The salient issues involved the heritage significance, design and aesthetics of the carport and the front door. The evidence and findings Car port 25 Before the hearing commenced the applicant had agreed to lower the carport roof by 500mm. This would bring the underside of the proposed roof to a level of 60.26m AHD given that the underside of the proposed carport roof was set originally at 60.76m AHD. The top of the amended roof would be around 60.46m AHD given a roof thickness as shown on the section of around 200mm. The drawings that accompanied the s 96-modification application showed the proposed carport roof projecting to the front alignment, however, before the hearing the applicant agreed to set it back about 1.150m. 26 The experts agreed that the lowering and setting back of the carport roof would reduce its visual impact and make it more compatible in the heritage conservation area. 27 However, the council's preferred position was that enunciated by Messrs Kovacs and Ristevski, who were of the opinion that a carport of minimum dimensions would be acceptable provided the existing terraced dwelling house remained dominant in the streetscape. They sought a setback of 2.2m with the height of the roof reduced to the level now proposed. This would align the front facia of the proposed carport with the existing dwelling. 28 Ms Falkiner concerned that the proposed carport roof would dominate her 1850s freestanding dwelling abutting the land to the south, requested that the front facia of the roof be setback further than 2.2m from the street boundary so as align with the sandstock brick front wall of the façade of No 28 Holdsworth Street. 29 I accept the evidence of Ms Falkiner in respect of the setback of the roof of the proposed carport and were I minded otherwise to approve the modification application I would impose a condition in that regard. 30 If it were set back that distance the dominance of the proposed roof would be diminished and visually relate better with the dwelling at No 28 Holdsworth Street and would facilitate maintenance access to the verandah roof of that abutting property. 31 I asked Mr Harper, SC, to enquire of his client as to whether such a setback would be acceptable and I was told that it would not be, as the second car closest to the street would be exposed to the elements. 32 Alternative proposals were not canvassed, however, a design might be arrived at that would meet the setback of Ms Falkiner for the main roof and provide lightweight cover over the car space by means of an outrigger setback off the common boundary at the front. But it is not for the Court to design the proposal but to consider the merits of the application before it. 33 Thus I find that the carport roof as amended should not be approved. Front door 34 Messrs Ristevski and Kovacs expressed their preference that the front door be retained in order to preserve the contributory significance of the terraced dwelling. They pointed out that the front doors are essential components of the facades of the row of Victorian terraces from Nos 34-38 Holdsworth Street. 35 Messrs Davies, Popov and Ms Gordon and Ms Smedley preferred the conversion of the door to a window. The reason for the change was to allow for appropriate interior design for the sitting room and to remove the confusion of two front doors. Mr Harper, SC, submitted that if the door were to remain it "…creates an artificiality", that his client would like to see eliminated. 36 Mr Connell submitted, that the evidence of Mr Kovacs given on site, was that small changes could erode the character of the conservation area and need to be considered in that context. He submitted, that the personal desires of the applicant need to be weighed against the public interest. 37 I accept the council's evidence and I consider the fact that the front fence continues between pillars with no gate, that the sliding gate passes in front of the old front door, that there is a garden in front of the Victorian terraced building, and the new front door is so dominant in the view, leads me to the conclusion that from the outside no confusion as to the entrance to the building exists. From the inside the fact that there might be a door behind a lounge chair is a small price for the owners and occupants to pay in order to maintain a contributory façade in the public interest. Rendering the front façade 38 When the matter came to Court the applicant no longer sought to render the fair-faced sandstone in the façade and did not pursue this aspect of the design. This is a major concession and as a result the old building at No 32 Holdsworth Street will continue to contribute appropriately to the conservation area and in the streetscape. Before the hearing, the applicant's heritage consultant endorsed this proposal to render the front facade. 39 Mr Prisk and the council witnesses were interested in maintaining the unrendered character of the old building and its contribution to the streetscape and the conservation area. 40 The photographs contained in the report of City Plan Heritage, dated 15 August 2006 showing the front fence before the latest renovations also show the front face of the southern veranda fin wall un-rendered, [Note: Exhibit 4 Tab 50, pp252-3]. 41 The note on the drawings suggested that the fin wall on the southern side of the veranda would be reinstated when it was reconstructed to eliminate the bowing. One would have hoped that the face of that fin wall would have been retained as fair-faced stonework and not rendered. However, that has not been done to the detriment of the conservation area and the streetscape. 42 For the above reasons, the appeal is dismissed. Orders 43 My orders are: 1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed. 2. The modification application under s 96 of the Environmental Planning and Assessment Act 1979 dated 12 October 2006 in respect of the consent of development application No 355/03, dated 7 October 2003, to alter and add to a terraced dwelling house at Lot 1, DP 136824, being No 32 Holdsworth Street, Woollahra is refused consent. 3. The exhibits except for Exhibits D, F, 1, 2, 3, 7, 8 and 9 are returned. S J Watts Commissioner of the Court sw 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.