Cracknell Lonergan Architects v Woollahra Municipal Council and Margaret Butler v Woollahra Municipal Council [2008] NSWLEC 1528

Land and Environment Court of New South Wales

CITATION : Cracknell Lonergan Architects v Woollahra Municipal Council and Margaret Butler v Woollahra Municipal Council [2008] NSWLEC 1528

APPLICANT Cracknell Lonergan Architects PARTIES : Margaret Butler

RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11061 of 2008; 10682 of 2008

CORAM: Tuor C

Section 96 Application :- and Order for works carried our without consent KEY ISSUES: impact on heritage significance of Conservation area whether replacement elements infill development

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Paddington Heritage Conservation Area Development Control Plan

DATES OF HEARING: 21/11/2008

EX TEMPORE JUDGMENT DATE : 24 November 2008

APPLICANT Mr G Green, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

24 November 2008

11061 of 2008 Cracknell Lonergan Architects v Woollahra Municipal Council 10682 of 2008 Margaret Butler v Woollahra Municipal Council

JUDGMENT 1 These are two appeals that relate to an existing terrace house at 98 Windsor Street, Paddington (the site), which is part of a group with the adjoining terrace at 96 Windsor Street. 2 The parties agree that the appeals could be heard together. 3 Appeal No. 11061 of 2008 is an appeal against the refusal by Woollahra Municipal Council (the council) of an application under s 96 of the Environmental Planning Assessment Act 1979 (the Act) to modify a development consent (DA47/2006/1) for alterations and additions to the existing house. The s 96 application seeks approval for works carried out without consent. These works include new: · frieze to the first and ground floor barge boards, · balustrade to the first floor balcony, · solid core front entry door, · palisade front fence and gate. 4 The works have been constructed in a contemporary style which council contends is not consistent with the architectural style of the Victorian terrace. 5 Appeal No. 10682 of 2008 is an appeal against Order 90/2008 issued by the council to comply with the development consent by removing the works carried out without consent. 6 The site, its locality, the history of the application and the Order and the planning controls are in the Statement of Facts and Contentions and the Statement of Facts and Contentions in Reply. 7 A conference under s 34 of the Land and Environment Court Act 1979 was conducted on site. Agreement was reached on a number of matters but no agreement was reached on the front door, fence and gate. The s 34 conference was terminated and the parties agreed to the proceedings being disposed of under s 34(4)(b). 8 The parties agreed that the evidence on site of the experts, Mr P Lonergan, for the applicant and Mr G Fotis, for the council, the resident evidence and the site inspection are admissible in the proceedings now before the Court. 9 The parties agreed that the application would be amended to reflect the agreement reached during the s 34 conference on the following matters: i) The balustrade and friezes are to be detailed as shown in façade option A (exhibit A). This will include the depth of the frieze to match that of 96 Windsor Street and is to be cast lace work to match the balustrade. The friezes and the balustrade are to be painted. ii) The height of the brick pillars of the fence can remain. iii) The colour of the house can remain. 10 The key dispute between the parties that remained unresolved was whether the front fence and gate and the front door would adversely impact on the heritage significance of the conservation area. The experts agreed that there was no approval to remove and replace the front door under the development consent. The development consent approved the removal of the previous concrete front fence and its replacement with a "traditional palisade fence". 11 Mr Fotis did not object to the removal of the previous front door and fence, provided that they were replaced with a traditional design. He considered the contemporary proposal to be inconsistent with the requirements of the Paddington Heritage Conservation Area Development Control Plan (the DCP). 12 Mr Lonergan considered that the previous fence and door were not original and there is no evidence of what previously existed, therefore each element should be treated as infill development and a contemporary solution is appropriate and consistent with the DCP. 13 Mr Lonergan and Mr Fotis difference of opinion lies in their respective interpretations of the DCP. Principally whether the proposal is infill development and whether the DCP supports a contemporary design approach. 14 Mr Fotis and Mr Lonergan set out the provisions in the DCP which they considered to be relevant in their joint statement (exhibit 5). 15 I do not accept Mr Lonergan's interpretation that the development is infill development. The definition of infill development in Part 5 of the DCP provides that: