Land and Environment Court of New South Wales CITATION : Gialouris v Woollahara Municipal Council [2010] NSWLEC 1234 This decision has been amended. Please see the end of the judgment for a list of the amendments. Applicant J & S Gialouris PARTIES : Respondent Woollahara Municipal Council FILE NUMBER(S) : 10861 of 2009 CORAM: Morris C KEY ISSUES: DEVELOPMENT APPLICATION - HERITAGE :- Streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahara Local Environmental Plan 1995 CASES CITED: Gialouris v Woollahra Municipal Council [2008] NSWLEC 1311 DATES OF HEARING: 17 August 2010 DATE OF JUDGMENT: 25 August 2010 APPLICANTS Mr S Levitt LEGAL REPRESENTATIVES: Levitt Robinson Solicitors RESPONDENT Mr C McEwen SC instructed by Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 25 August 2010 10861 of 2009 Jim & Sophie Gialouris v Woollahra Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Woollahra Council (the council) of a development application which proposed the construction of a driveway crossing and garage to the street frontage at No 31 Suffolk Street, Paddington. 2 The main contentions in the matter are that the proposal is contrary to the provisions of the Woollahra Local Environmental Plan 1995 (the LEP) and the Paddington Heritage Conservation Area Development Control Plan 2008 (the 2008 DCP), particularly in relation to heritage impact and is not in the public interest. The site and its context 3 No. 31 Suffolk Street (the site) is a triangular shaped allotment at the north-eastern end of the street. A former night soil lane forms the property's rear boundary and the apex of the site is located at a turn in the road that leads to Norfolk Street. The lane is for pedestrian movement only and does not provide vehicular access to the site. 4 The site has a frontage of 21.07m to Suffolk Street, rear or eastern boundary of 24.81m and side or southern boundary of 13.03m, which results in a site area of 139.6 square metres. 5 Suffolk Street runs in a northeast/southwest direction and falls from the south to north. Both sides of the street contain terrace houses which were built in the early 1900s. It is agreed by the experts that the dwellings built on the eastern side of the street would have been on land which formed the Duxford Estate and were likely to have been built by the same builder. Apart from No 31, the subject dwelling, all houses in Suffolk Street are attached terraces. 6 Not all buildings are identical however there are three consistent styles of housing. Nos 3-21 are of the traditional two-storey, single fronted terrace house characteristic to Paddington, set back from the street with a small front garden. Nos 25-29 do not incorporate a front garden however are single fronted, two-storey dwellings typical to the area. A stairway adjacent to the front property boundary provides for the limited setback of the dwelling to the street. Nos 1, 23 and 31 are all double fronted dwellings however No 31 is the only detached house in the group. 7 Suffolk Street is characterised by these terrace houses and advanced street trees, which filter the views of the dwellings from the roadway, and planter beds in the footpath area. Parking is provided on street, parallel parking on the eastern side and 90degree on the western side. Restricted parking is located on the western side of the carriageway at each end of the street. 8 The site contains a two-storey detached dwelling with basement area and attic space that is erected to the front and southern/side boundaries. The garden area of the property is located within the apex of the triangle to the north of the dwelling. An elevated terrace has been constructed within the garden area at a level consistent with the main living area of the dwelling. That level is accessed via an external stairway constructed adjacent to the street boundary and provides access from the street to the front door of the dwelling. Similarly, a stairway is required to access the garden from the terrace. Background and the proposal 9 An application for the upgrading of the existing dwelling including the construction of the garage and crossing has been the subject of an earlier appeal to this Court in 2008. In his decision Gialouris v Woollahra Municipal Council [2008] NSWLEC 1311 Hoffman C. allowed the appeal in part, approving the alterations and additions to the dwelling including the terrace area but refused the application for the garage and crossing. 10 At that time, the Development Control Plan which applied to the site was Paddington Development Control Plan 1999 (the 1999 DCP). The 2008 DCP now applies. Throughout the proceedings reference was made to the perceived differences between these plans which are said to distinguish this application from the one considered in 2008. 11 The proposed development involves the construction of a new driveway crossing in the existing sandstone kerb which would lead to a single car garage to be built within the subfloor of the current terrace area. A 3 metre wide opening would be made in the existing wall at the street frontage and a sliding, western red cedar door installed to enclose the garage area. 12 Works, that are the subject of the application, have been commenced by the applicant however there is an agreement between the parties that the application be determined as if those works had not commenced. This is primarily in relation to the removal of a section of a sandstone dwarf wall which runs along the site's front property boundary. The Planning Controls 13 The site is zoned Residential 2(a) pursuant to the provisions of the Woollahra Local Environmental Plan 1995. That plan has numerous aims and objectives that must be considered when determining applications however the following are the most relevant to this application: (1)(c) to promote the management, development, conservation and economic use of property within the area of Woollahra, (g) to conserve the environmental heritage of the area of Woollahra, (2)(g)(ii) to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation area, 14 The Residential A zone has separate objectives, one of which is relevant to this application:- (a) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses, 15 The site is within the Paddington Heritage Conservation Area (CA) but is not a heritage item. 16 The 2008 DCP contains the relevant planning controls that apply to the site. These will be discussed in detail so as to address the contentions. The issues 17 The matters of contention are: · The proposal does not accord to the general aims and objectives of the LEP with respect to heritage conservation. · The proposal would have a detrimental impact upon the heritage significance of the CA. · The proposal is non-compliant with objectives and controls contained in the 2008 DCP, particularly in relation to kerbs and gutters; pavement, principle building form and street front zones of significant buildings; fences, walls and gates; on-site vehicle parking, garages, driveway access and servicing facilities; materials, finishes and details and building types. · The proposal is not in the public interest. The evidence 18 The hearing commenced on site when evidence was heard from Mr John Mant on behalf of the Paddington Society (the Society) and Ms Monica McDowell, a long time resident of Suffolk Street. Submissions, by way of objections to the application had been lodged with the council by the Society and Ms McDowell. 19 Mr Mant explained the Society's interest in the preservation of the character of Paddington and its interest in ensuring the council's planning controls are implemented. He advises that these controls are to mean that there are no more garages in the street. If a new garage is to be allowed, it is to be from a rear lane. He is of the view that if you choose to live in Paddington that there should be no expectation of having a garage. He considers that the streetscape is the important element, which would be adversely impacted by the proposal, and that this streetscape is to be seen as a whole. In relation to the on-street parking space that would be lost to provide for the driveway, Mr Mant is of the view that this would prioritise private interests over that of the general public and that currently, many more people can use the car space on the street. 20 Ms McDowell endorsed the views expressed by Mr Mant and spoke of her concerns in relation to the loss of the heritage wall which was part of the estate previously occupying the area. She also xpressed concerns in relation to traffic safety due to the location of a driveway crossing in close proximity to the intersection. With regard to the on-street parking, Ms McDowell described the demand as very high and that the high utilisation of the spaces observed at the time of the view was typical of that demand. Evidence was provided that at nights and during weekends, it is not always possible to obtain a parking space in Suffolk Street. 21 A view of Suffolk Street, Suffolk Lane, Duxford Street and Broughton Street was conducted and recent footpath works in Duxford Street including the installation of stainless steel angles adjacent to trees at the kerb were observed. 22 Expert evidence was heard from: · Mr M D'Alessio, planner and heritage for the council, · Mr B Kirk, planner for the applicant, · Dr R Lamb, visual and heritage for the applicant. 23 The key area of disagreement between the council's and applicant's experts was whether the opening was within the street front zone of the property and whether it impacted on the streetscape of Suffolk Street. A number of definitional issues were raised and must be considered in the judgment. 24 The 2008 DCP introduces a definition of 'street front zone' (SFZ) which was not included in the glossary to the 1999 DCP considered by Commissioner Hoffman in the earlier appeal. Pursuant to the 2008 DCP, street front zone comprises the front building elevation and visible roof, front yard, the side boundary fences in the front yard and the street boundary fence. Section 4.1.1 explains the context of this area and states 'The loss of significant original fabric, in particular of the principal building form and street front zone, will weaken the integrity of the heritage conservation area. Where work is proposed to the principal building form and the street from zone, reconstruction or restoration of missing elements and the removal of unsympathetic elements is encouraged. New work should be carefully designed sympathetically within the significant historic fabric.' Principle building form is the original front building section and main roof, which contains the main rooms. 25 The objectives of the 2008 DCP in relation to the SFZ are found in Part 4.1.1 and include: 01 To retain and conserve the principal building forms and street front zones. 02 To restore or reconstruct missing elements of the principal building forms and within the street front zone. 03 To encourage the removal of uncharacteristic elements or structures. 04 To promote design that conforms to the existing character of the area. 05 To reverse inappropriate construction work. 06 To retain the distinctive shared characteristic of groups of buildings. 07 To retain, restore and promote the significance, contribution and relationship of a building within the context o fa group of buildings. 08 To conserve the significant original fabric of terrace houses, terrace groups and free standing buildings of similar age and character. 012 To retain the historic framework of the building both as essential structure and as evidence of original patterns of construction and use. 26 Part 4.2.6 of the 2008 DCP provides objectives and controls for on-site vehicle parking, garages, carports, driveway access and servicing facilities. Relevant objectives and controls are: O4 To ensure that the designs of garages, carports, fences and gates are sympathetic in their massing, form and scale to the relevant aspects of the historic context and setting of the building and allow visual connectivity to the principal building form of a significant group. O6 To provide off-street car parking and servicing facilities where feasible. 07 To retain sandstone kerbing on streets and laneways where feasible. C1 Provision of on-site parking areas, parking structures and servicing areas such as loading facilities is not be (sic) a mandatory requirement. In addition, and subject to circumstances listed in the following controls, on-site parking will only be permitted or may only be required where: a. The parking area, servicing area of structure will not have a detrimental impact on: - the amenity of adjoining properties, - the architectural character or significance of a building, …… - the character of a streetscape or laneway, or - the health of a significant tree. i. extensive excavation is not required and the excavation controls in clause 4.1.6 are met, l. there is no net loss of vehicle parking spaces in the immediate area, and m. the use and quantity of on-street parking spaces in not adversely affected. C2 No further vehicle crossings are permitted at street frontages that form part of the street front zone. C3 No parking is permitted on that area of the site which forms part of the street front zone or within or beneath the principal building form. 27 The experts did not agree on the location of the street front zone. Mr D'Alessio considered that the zone extended along the whole of the Suffolk Street frontage and incorporated that area forward of the ridge line of the dwelling. Mr Kirk and Dr Lamb consider that the area is confined to the two side boundaries of the main dwelling or the principle building form, and that area between the front property boundary up to the ridge line but extending further pack to the rear hip roof as this element of the roof is visible from the street. Details of the two variations were drawn on Exhibit D so that both parties could define the precise area. 28 Mr D'Alessio's evidence is that the proposed garage and vehicle crossing is within the SFZ, is contrary to the objectives and controls of the LEP and the 2008 DCP and is uncharacteristic to the original streetscape characteristics of the subject dwelling's group and that of Suffolk Street. He believes that it will appear as an intrusive element and does not conserve the street front zone, the street boundary sandstone retaining wall to Suffolk Street or the streetscape character. 29 Mr Kirk does not agree that the proposed garage is within the SFZ and considers that the proposal is acceptable having regard to the streetscape. 30 Dr Lamb considers that as only the garage door will be visible that it will not have any significant negative effect on the heritage significance of the CA, particularly when considered in relation to the setting to which it contributes most. He considers the timber garage door would have a recessive visibility due to the presence of two large trees in the vicinity of the subject site and due to the natural and recessive colour of the timber itself. He considers that it would be consistent with any number of other garage and wall doors that are visible from the frontage of the site and in adjacent street. He suggests that a consent condition in regard to the material, colour and façade treatment of the garage door could be imposed. For example, he says that if consistency with regard to the ashlar-look base course of the dwelling or the base sandstone course is desirable, the door could be clad with stone or similar facing material to match it. 31 The proposed works require the removal of approximately 3 metres of an existing stone dwarf wall along the Suffolk Street property boundary, described by Mr D'Alessio as a retaining wall, Mr Kirk as a boundary wall and Dr Lamb as a wall. Mr D'Alessio is of the view that the wall should be retained, as it is a significant sandstone wall evident of the historical development of the CA and specifically the subdivision of the Duxford Estate, formation of Suffolk Street and the demolition of Duxford House. Mr Kirk believes that as the majority of the wall is to be retained this will enable the interpretation of the historical development of the area to continue. Dr Lamb states that the wall is not a heritage item and while it may add something to the story of the locality it is a minor feature. He considers it very unlikely that viewers in the CA would be able to link the wall affected with the former Duxford Estate, which is far more evident in the style of the buildings in the terraces built on it than the remnant of the former fence or retaining wall. 32 A kerb crossing would be required to provide vehicular access to the site as one does not exist. Mr D'Alessio states that this is contrary to the provisions of Controls C1, C2 and C8 in Part 4.2.6 of the DCP. He is also concerned with the loss of an all day public parking space from the street. Mr Kirk disagrees that the crossing is within the SFZ and whilst he agrees that it is visible of the main frontage relative to the dwelling it is, in his opinion, part of an ancillary structure and associated with the side or rear yard of the dwelling and a part of the property that is clearly not of a similar age to the building to which it has been added with consent. He states that sandstone kerbs are, not in themselves of heritage significance, are as common on streets as in rear lanes and feature in streets of various ages and are a consistent and utilitarian feature of the CA that contributes to its character. He refers to the extent of modification that has been carried out to kerbs within the CA as a result of providing access to private property in rear lanes and by the council in the replacement of lengths of kerb as was observed in Duxford Street with concrete kerbing. Mr Kirk considers that there are methods that could be employed such as placing the layback apart from the kerb and retaining the existing sandstone in situ. Dr Lamb agrees that there are ways of retaining the sandstone kerbing and recommends these be explored in the event that consent is granted. He acknowledges that the loss of public parking will occur but cites a public benefit through the provision of a crossover that would provide access for people with prams, trolleys or disabilities. Conclusions and findings 33 It was put to me that the introduction of a definition of SFZ in the 2008 DCP distinguishes this application from the one considered by Commissioner Hoffman. I do not intend to revisit the decision made by the commissioner. The 2008 DCP applies and I must consider the application on the basis of the current planning controls. 34 It is clear to me that the preservation of the character and streetscape of the CA, of which the site forms a part, are paramount considerations of the council and are articulated throughout the 2008 DCP. Streetscape has been defined by the council in the 2008 DCP as follows; encompasses both the public and private domain and includes the street design, its landscaping, traffic management treatments, surfaces, utility installations, all buildings abutting the street and their associated landscaping, fences, paths and driveways. The arrangement and integration of these components and their visual appearance determine the streetscape character. 35 As the controls in relation to the proposal turn on the definition of SFZ, I must determine whether they are within this zone. For the sake of completeness, I repeat the definition, which as added to the 2008 DCP. Street front zone comprises the front building elevation and visible roof, front yard, the side boundary fences in the front yard and the street boundary fence. (Emphasis added) The works are within the existing wall which is erected on the Suffolk Street property boundary. This wall acts as a fence and encloses the garden and recreation area of the site. There was no dispute between the experts that the wall was on the street boundary. Accordingly, I consider this wall to form part of the site's street boundary fence and therefore determine that the works are within the SFZ. There is no need for me to determine the actual extent of the SFZ, just to be satisfied whether the works are within that zone. For this reason, I accept that the works are contrary to the council's 2008 DCP, particularly Control 4.2.6 C2 as well as the overall objectives of that plan. 36 Suffolk Street is a well preserved example of the historic fabric of Paddington and apart from a garage at the southern end of the street, is in tact. I agree with Mr D'Alessio that the proposed works are not consistent with the desired future character of the CA, particularly those requirements to retain evidence of the historical development of the area. A garage within the Suffolk Street boundary fence would contribute as a foreign element adversely affecting the streetscape. These works would have a significant impact on the character of the CA. I do not consider that the garage door would be consistent with the historic context and setting of the building. 37 Whilst I accept that the 2008 DCP allows for the provision of off-street parking provided there is no net loss, I consider that the loss of a publicly available car parking space would adversely affect the quantity of on-street parking available within Suffolk Street. It is clear from the evidence of Ms McDowell that demand for parking in the area is very high and this was evident at the time of the site view. 38 I do not consider that the impact of the works to the kerb would be determinative as there are ways in which the existing sandstone kerb could be retained in situ. 39 Similarly, I do not consider that the removal of approximately 3 metres of the sandstone wall would be of such an impact as to warrant refusal of the application on its own. 40 As the proposed development would adversely affect the historical character of the area and the Suffolk Street streetscape, the application must be refused. 41 Therefore, the orders of the Court are: 1. The appeal is dismissed; 2. Development application DA 505/2008/1 for the construction of a garage door opening in boundary wall/terrace structure and vehicular crossing is determined by the refusal of development consent; and 3. The exhibits are returned. 25/08/2010 - Year of decision corrected. - Paragraph(s) heading 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.