Land and Environment Court of New South Wales CITATION : Melocco and Moore Architects v Woollahra Municipal Council [2009] NSWLEC 1005 APPLICANT Melocco and Moore Architects PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10864 of 2008 CORAM: Hoffman C KEY ISSUES: DEVELOPMENT CONSENT :- Deemed refusal of a s96 application to amend development consent to allow the raising of the roof and eaves gutter line, conservation area, streetscape, significant item in a significant group (not a heritage item) Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 LEGISLATION CITED: SEPP (Building SustainabiUty Index: BASIX) 2004 SREP (Sydney Harbour Catchment) 2005 Woollahra Heritage Conservation Area Development Control Plan 2003 DATES OF HEARING: 25/11/2008 DATE OF JUDGMENT: 9 January 2009 APPLICANT Mr A. Whealy, solicitor of Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S. Simmington, solicitor of Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 9 January 2008 10864 of 2008 Melocco and Moore Architects v Woollahra Municipal Council JUDGMENT 1 Commissioner: This is a Class 1 Appeal No. 10864 of 2008 between Melocco and Moore Architects v Woollahra Council in regard to the deemed refusal of a s96 application to amend development consent DA 600/2007/1 to allow the raising of the roof and eaves gutter line of No. 12 John Street, Woollahra. 2 The Section 96 application proposed the following works: o an increase in the roof height of 12 John Street to reflect the height of 10 John Street, including an increase in the height of the wall height and dormer windows . o the deletion of Condition C1(d), which limits use of the first floor level of 12 John Street for storage only. (In increasing the height of the roof, an adequate floor to ceiling height is achieved.) The Locality 3 The area is characterised by an eclectic mix of the years 1800's dwelling types ranging from relatively small single dwellings on narrow allotments with small or no front setbacks to large free-standing two storey dwellings in a tree lined street. 4 The city block is between Queen Street, Woollahra and Oxford Street where the latter runs along the boundary of Centennial Park. The Site 5 No. 10 is a two-storey dwelling that was previously two cottages, but is now amalgamated into one. The dwelling maintains the appearance of two smaller cottages to John Street and contains dormers fronting John Street with a first floor addition behind the roof ridge. 6 No. 12 is a single storey attached Victorian terrace house, forming the eastern end of a group of 3 similar dwellings in Nos 10-12 John Street. 7 The two original cottages forming No. 10 apparently have always had roofs with the same pitch and ridge height and no external separating common wall. As a result they appear as one plane, except for the two small existing dormers and a chimney straddling the ridge above the hidden common wall. 8 The roof of the cottage on No. 12 apparently has always had a roof of the same pitch as No. 10, but the spring line and ridge is stepped down about 250mm from the other two. There is a chimney straddling the ridge of No. 12 on its eastern boundary wall against No. 14 John Street. 9 The roofs are all corrugated iron material with a simple quad eaves gutter on No. 12, and a more recent fascia style metal gutter on No. 10. There is no eaves overhang except for the gutters themselves that are fixed to the front wall. 10 All of the dwellings in the group are constructed to the John Street boundary. They are of simple unadorned form with one door and one window each in the front wall. No. 10 comprises the recognisable form of the two original cottages, with the portal of one front door still there but having been converted into a window. 11 The site is located in the West Woollahra precinct. 12 Nos 10 and 12 John Street are contributory (and therefore significant) items forming part of the group of 4, 6, 10 and 12 John Street under Woollahra Heritage Conservation Area Development Control Plan 2003. 13 The two allotments (10 and 12 John Street) are located on the northern side of John Street towards the western end of the street. They have a combined frontage of approximately 10.5m and a depth of approximately 17m. 14 The smaller allotment, No. 12 being Lot 1, has a frontage of 3.5m and is located on the eastern side of the site. The larger allotment (No. 10), is Lot 3, and has a frontage of 7.065m, on the western side. The Current Approval 15 The approved development (DA600/2007/1) is for alterations and additions to the two existing Victorian cottages, Nos 10 and 12, with an internal connection. 16 Works to the larger of the two cottages (No. 10) involved internal modifications, an extension to the rear and the removal and replacement of the front dormers. Works to the smaller of the two cottages (No.12) included a new first floor addition and dormer to the front to match the new dormers in No. 10, and on No. 12 a new single garage to James Lane with guest bedroom above. 17 The original ground floor levels have been excavated about 0.5m to allow 'rooms in the roof" without raising the existing roof ridges. In No. 10 there is enough headroom to achieve the minimum 2.4m ceiling height for a habitable room. Because No. 12's roof steps down 250mm from No. 10, it can only get about 2.0m and is approved for Storage/Library only. 18 There is a courtyard between the rear of No. 10 and the lane. There is another courtyard between the rear of No. 12 and the garage. 19 Vehicular access is provided to No. 12 from James Lane and pedestrian access is provided to No. 10 from the lane too. The lane appears only wide enough for a car to travel down it to the garage and then reverse out to James Street without turning around. 20 The site falls from west to east. The courtyards are both almost fully paved with some landscaping in strip planter beds along one side. The fall in the land is reflected in the step between the roofs of Nos 10 and 12, the latter being about 600mm lower. Applicable Instruments and Controls 21 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995. The proposed use is permissible within the zone. The applicable controls are: * SEPP (Building SustainabiUty Index: BASIX) 2004 * Environmental Planning and Assessment Act 1979 Section 79C: Evaluation * SREP (Sydney Harbour Catchment) 2005 * Woollahra Local Environmental Plan 1995 Aims and objectives Clauses 12 and 12M: Height of buildings Clause 28: Heritage conservation areas * Woollahra Heritage Conservation Area Development Control Plan 2003 Section 3.2.1: Conservation of significant items and group significant items Section 3.2.3: Alterations and additions to significant items Section 3.3.4: Building type controls (terrace houses) Section 3.4.4: Building height, form, bulk, scale and character Section 3.4.8: Roofs and skylights The Contentions 1. Increase in ridgeline or roof The increase in the ridge height of the roof of No. 12 John Street interrupts the stepped and distinguishable nature of the roofscape on the western side of John Street. It would also alter the building separation that is currently evident between No. 10 and 12 John Street, which includes changes in roof materials and colours between each property. Particulars: 1.1 The proposal is contrary to the following objectives and controls: Objective (g)(ii) in cl2 (2) of the Woollahra LEP 1995 01, 02, 03, 04, C1, C5, C6 of Section 3.2.1 of the Woollahra Heritage Conservation Area DCP 2003 01, 02, 03, CB of Section 3.2.3 of the Woollahra Heritage Conservation Area DCP 2003 01 and C1 of Section 3.3.4 of Woollahra Heritage Conservation Area DCP 2003 01 of Section 3.4.8 of the Woollahra Heritage Conservation Area DCP 2003 2. Environmental Impact Heritage significance of the group significant items and heritage conservation 'area Streetscape appearance The Evidence 22 The applicant's evidence came from Mr A Darroch consultant town planner, with a heritage impact report from Mr S Davies heritage and town planning consultant. 23 The respondent's evidence came from Mr M Robinson architect, heritage and planning consultant, and objector Mr Cashmere of No. 14 John Street on the east side of No. 12. His is an abutting house of single storey colonial cottage appearance with a narrow front verandah and picket fence balustrade along the full street frontage. 24 The hearing was held on site. 25 Mr Cashmere said he had lived in John Street for many years and other members of his family lived in other houses in the street. His house is next door to No. 12. The latter house is perhaps the smallest house in Sydney he said. 26 On the inspection I walked in the front door of No. 12 directly into what was apparently a "bed-sitting" room, it is only about 3m x 3m. The next room accessed through the first is a very basic kitchen about 2m x 3m with a door to an outside passage that gives access to an ablutions room and the back yard. It is a very small house indeed. 27 Mr Cashmere said the local residents and the council put great value on the streetscape and had resisted unsuitable development over the years. He noted there had been alterations and additions to several houses, even 2nd storey additions, but in a walk along the street they are difficult to discern because they have been designed and built sympathetically. 28 On the proposal for No. 12 he said the important feature in his opinion is the visual interplay between his roof and No. 12's east wall, roof pitch and chimney. The two roofs are at the same pitch, but because No. 12 rises to its ridge in a short distance and its east wall is higher than No. 14, the east wall is quite visible from the street rising up to the chimney and then descending to meet No. 14's roof. It is a typical Victorian interplay of abutting houses, and the proposal will upset that. The proposal has a flat roof behind the ridge and so the symmetry of No. 12's east wall with the chimney straddling the ridge and the roof falling equally both sides will be lost. 29 Here is a picture of the feature as it exists, No. 12 on the left and No. 14 on the right: 30 Mr Davies said the amended plans retained that feature. It is by a subtlety of stepping the flat roof in 0.5m from the sidewall north of the ridge. By doing this the symmetry of the pitched roof south and north of the ridge with the chimney in the middle can be retained. Whilst the barge of the flat roof might be seen by the inquiring eye, to the average person walking along the street it would not be noticed. 31 This sounded like a good solution until we went to the plans. Of course the first thing I looked for was an elevation of this east wall of No. 12. There is no east elevation to demonstrate what Mr Davies had said. The closest I could find is Section 03 on drawing 0617 D 05E. It shows the ridge being extended through to the north face of the chimney instead of the ridge remaining at the centre of the chimney. As a result the end gable would be uneven, not balanced each side of the chimney. This is confirmed by drawing 04D, the roof plan. It shows the ridge moved back to the north face of the chimney. 32 Observation from the street indicated the existing roof of No. 10, that is to remain as is, except for the dormer windows, has its ridge aligning with the centre of the chimney. So any approval of the plans in Exhibit A would de facto move the ridge of No. 10 also. I was informed the drawings must be wrong, and that amended plans should be produced to show it correctly. 33 A further look at the plans reveals that the Elevation 01 shows a window and door lintel height of about 200mm from window/door head up to the eaves gutter in No. 10 and the door in No. 12. Observation from the street and photos in Exhibit D indicate there is less than that. The heads go up almost to underneath the eaves gutters. 34 Also the window shown in No. 12 is wider than the existing window. The existing window is shown to remain, not be widened. The windows in No. 10 match the existing window in No. 12, so enlarging the window in No. 12 would be unsympathetic. Also for some unknown reason, the lintel height of the No. 12 window on the plans is about 400mm when the existing window head is almost hard up under the eaves gutter and at the same height as the door head. 35 It is true that to raise the roof of No. 12 to match and keep the same roof pitch as No. 10, the lintel height, and the front wall of No. 12 has to be raised. But it will not be as much as shown on the plans. And from observation, the existing heads of No. 12 are a little below the height as those of No. 10, but are not shown at the correct dimension on the elevation drawing. 36 The experts agreed that in achieving a sympathetic treatment, the details such as above are critical to success. 37 Looking at this with a critical eye, it becomes clear that the front door and window of No. 12 being set lower than those of No. 10 follows the step down of the roof. If the roof is raised and the window and door heads of No. 12 stay as is, or be different as shown on the plans, it will accentuate the alteration. The proportions of the No. 12 façade will be different to No. 10, whereas at the moment they fit sympathetically because the step is carried through to all noticeable elements (eaves, door, window, roof, window/door lintel heights). 38 The question becomes whether the difference would be noticeable to the extent that it is unacceptable? Also, whether the change can be accepted under the applicable statutes and controls? 39 Mr Davies said Nos. 10 and 12 would still read as a group of 3 small terraces dating from the 1870's, but ones that have been updated as seen by the front doors of the two end ones being closed up. Each of the three were originally as tiny as No. 12, and plainly not suitable for current day living standards. Many old dwellings are updated or amalgamated in conservation areas and yet maintain the streetscape qualities as this proposal would. 40 The 3 terraces as a group, and No. 12 individually are contributory items to the streetscape and the conservation area but are NOT heritage items, he said. Even though the Woollahra controls call them "significant items", there must be a difference between heritage items and significant items. The former requires restoration and conservation, the latter must retain its contributory qualities to the conservation area and the streetscape whilst being able to be changed and adapted to current dwelling requirements. 41 The council has approved the major changes to No. 12 allowing to be internally gutted and connected into No. 10. Externally it has approved dormers in the roofs, two in No. 10 and one to match in No. 12. The three dormers accentuate the original three small terraces character. 42 Matching up the roof heights is not unusual in Mr Davies experience. In fact he can see reasons for doing it from a streetscape and conservation character aspect. He notes and it can be seen from the street, there is a stone basecourse along the front wall of all three. The stone basecourse has no step at No. 12, the footpath is level across all three. Apparently the original floor levels inside all three were the same, No. 12 just had a lower roof and ceiling height. Mr Davies can see no reason for the difference except builder's whim. 43 He notes that the council controls say do not change the roofs of significant items. In his opinion the purpose of that is to minimise disturbance of heritage streetscape. He sees no such impact in this proposal. In any case the change to the roof of No. 10 was approved since that control was introduced and council approved it. So the council must interpret the control on the basis of achieving an appropriate heritage planning outcome, not on a rigid "no change" basis, he said. 44 The 3 terraces have a standard plinth height, so it is logical that they have a standard roof height too. The builder could just as easily done that to reinforce the consistency of the group. The massing of the group will stay the same in relative terms and the intended outcome of the council controls will be complied with, in Mr Davies opinion. 45 John Street has a typically Victorian range of variations in building shapes roof shapes and design styles and number of storeys. Provided the relationship with No. 14 is managed as described above, Mr Davies said the proposal will fit in, and be sympathetic to its neighbours and the streetscape. The practice of conservation in a declared area is to manage change sensitively, he said. 46 It was put to Mr Darroch that the proposal would exceed the permissible Floor Space Ratio (FSR), and would create additional living space in the house and bulk on the exterior. 47 He said that is incorrect. The council approved the room in the roof called Store/Library with the proposed new dormer window facing the street that will be the dominant external feature. The external bulk will hardly change at all. The council accepted the room is non-habitable with a ceiling height of only 2m. Being non-habitable the room is not counted as floor space in the calculation of FSR. 48 But, in any case, Mr Darroch said, the permissible maximum FSR is 0.95:1 and the proposal is 0.8:1, well below the maximum. That is the same FSR as the approved plan because the proposed room will only have a ceiling height of 2.25m when the minimum for a habitable room is 2.4m. The reason for the application is that one of the partners, who own the house is an author and needs library space. The room will be full of book shelves. But the approved ceiling height of 2m is not good amenity, and just a few more centimetres will make it much better. 49 Mr Robinson was asked from what aspects he had assessed the proposal. He said from heritage impact. It was put to him that cl 2(1)(c) of the Woollahra LEP required assessment of DA's for management, development, conservation and economic use of property and Mr Davies and Mr Darroch had assessed those aspects as required and found in favour of the proposal. Mr Robinson said heritage impact is the key issue in this appeal. 50 He was asked if he distinguished between heritage items and significant items. He said the only difference under the LEP in his mind is that heritage items require a development application for ANY work on them, whereas significant items may not need a DA for some works on them. 51 Mr Robinson said the key impacts of the proposal are: * It is visible from the street * It is not an "imperceptible change" in his opinion * The peculiar difference in roof height between Nos 10 and 12 is a part of its character, no matter if it was a whim or not * The change in roof height makes Nos. 10-12 an irregular group, but many building groups in the conservation area have quirks that form part of the richness that gives the area its value. * Mr Davies had thought at the time of writing his report that the height of window and door heads of No. 12 match those of No. 10 and they do not. Raising the front wall of No. 12 will accentuate that * It is inconsistent with DCP cl 3.2.1-C1 that the original building form, roof pitch, eave height and chimney should be kept with no alterations to the original elevations. * C3 that reconstruction is allowed but not inappropriate forms/details/materials. * C5 that distinctive original shared character should be kept including roof forms and the step between the roofs of Nos 10 and 12 is distinctive. * C6 in a group, the form and pattern of the group to be kept * Cl 3.2.3-O3 existing heights to be kept, and C8 do not increase building height. 52 The proposal conflicts with all these provisions in Mr Robinson's opinion. 53 Mr Robinson sketched an amendment in Exhibit 11 that enables a higher ceiling in the store/library and keeps the step in the roof, but extends the ridge of No. 12 in the southern roof plane up until it meets the barge of No. 10's roof on its northern plane. It retains the distinctive character of the step, he said and keeps the existing proportions of the street façade of No. 12. On the eastern gable adjoining No. 14 the treatment of stepping the new higher No. 12 roof back 0.5m from its eastern boundary and keeping the existing symmetry of the wall and existing roof around the chimney (as seen from the street) can still be carried out, he said. 54 Mr Darroch and Mr Davies did not like that option because the ridge of No. 12 would not line up with that of No. 10 as it would be about 300mm further north, or at about the north face of No. 12's chimney. Conclusions 55 In this appeal the experts agreed that achieving compliance with the individual controls and achieving the appropriate or best heritage outcome for the individual building and for the group of 3, and for the conservation streetscape is a matter of balancing the various options. 56 In the end the differences between them were about the construction details that would achieve the better result. 57 I am attracted to Mr Davies almost last remark at the Hearing that the construction, as the applicant proposes, would retain the distinctive shared character of the group that is: * 3 attached original small terraces * similar roofs, door openings and windows * simple forms with no ornamentation 58 It seems to me that to retain that character there are two important views the passerby would notice. One is the east gable end wall and chimney of No. 12, and the stepped roof planes of Nos 10 and 12 with their new dormers if approaching from the east. The other is in approaching from the east or the west the similar proportions of the front walls in regard to their window and door openings and their height relation ship to the eaves, plus, in the same view, the roofs of Nos 10 and 12 with their new dormers. 59 The street trees that have canopy in front of the facades mask these views to some extent. But given the intent of conservation areas to maintain the character of the buildings over possibly centuries, the vegetation will change a lot in that period. It should not be relied upon in its current state of growth. 60 It is important to recall that the drawings did not accurately reflect the existing building or the proposal as understood from the evidence. I asked for amended plans to be prepared and filed after the Hearing so I had better visual documents for assessment. The applicant did file plans on 27 November. The plans show the roof of No. 10 and 12 with the ridge centered on the chimney of No. 12, but do not correct the street front elevations in terms of the door and window heights, sizes and lintels. They still have no east elevation of No. 12, but it could be approximated from the Section 03 drawing. 61 I have formed the opinion that an important visual characteristic of the group and its relationship to the streetscape is the step in the roofs and the proportions as existing in the front walls of Nos 10 and 12. Given Mr Robinson's evidence in Exhibit 11, it is my opinion that both the applicant's and the respondent's objectives can be achieved by upholding the appeal subject to amended drawings implementing Exhibit 11 and correctly showing the existing street walls of both Nos 10 and 12. The amended plans can be prepared under a self-executing condition and another condition for the council to amend the development consent with new amended drawing numbers.. 62 Draft conditions were produced in Exhibit 10 dated 25 November 2008 for Condition A1(a) to have the amended drawing numbers and Condition C1.1 regarding increased landscape area. The applicant made no submissions on it. 63 Therefore the Orders of the Court are: 1. The s96 application is granted subject to the condition in Order 2 below. 2. That Development Consent DA 600/2007/1 issued by Woollahra Municipal Council for No. 12 John Street, Woollahra is modified, subject to amended plans being prepared as in Order 3 below and filed with council and the Court. 3. The plans in Exhibit A of this appeal to be amended to retain the existing step in the roofs between Nos 10 and 12 John Street as shown on Exhibit 11 dated 25 November 2008 of this appeal. The amended plans to show in addition, an east elevation of No. 12's gable end wall retaining the symmetry of the gable around the existing chimney as seen from John Street across the roof of No. 14 John Street. The amended plans to show accurately the street front façade of Nos. 10 and 12 John Street with the existing window and door openings and joinery details of the windows and doors and eaves heights and eaves gutters, plus the amended roof details. 4. The amended plans to be filed with council and the Court within 28 calendar days from the date of these orders. 5. Once the plans are filed the council shall re-issue the conditions of consent as DA 600/2007/2 with amendments as in Exhibit 10 but with "Condition A.1(a) Approved Amended Plans (Section 96) and Supporting Documents" having the replacement drawing numbers of the amended plans in Order 3 above. 6. Exhibit 11 is reproduced in Annexure A hereto. 7. The Exhibits are retuned to the parties except Exhibits A, 2, 10 & 11. ___________________ K G Hoffman 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.