Land and Environment Court of New South Wales CITATION : Knox v Woollahra Municipal Council [2008] NSWLEC 1277 APPLICANT Kate Knox PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 11088 of 2007 CORAM: Murrell C KEY ISSUES: Appeal :- s 34 conciliation conference, height of rear yard, heritage, landscape, impact on amenity of area, character, privacy, overlooking, overshadowing, acoustic, views, vegetation. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Development Control Plan CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 19/02/2008, 09/04/2008 and 10/04/2008 EX TEMPORE JUDGMENT DATE : 10 April 2008 APPLICANT Mr D. Brigden, solicitor of Holdings Rodlich LEGAL REPRESENTATIVES: RESPONDENT Mr T. Merlino, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 10 April 2008 11088 of 2007 Kate Knox v Woollahra Municipal Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 By way of background, this matter commenced as a s 34 conciliation conference on site. The subject site is No. 98 Paddington Street, Paddington. Subsequent to the conciliation conference amended plans were submitted. The parties have now come to Court and both agreed the matter should now proceed by way of adjudication under s 34 as the parties have not reached agreement. 2 The amended plans that are the subject of these proceedings are dated 2 March 2008. Council has had the opportunity of preparing comments on same and while there were a number of issues initially raised, however, these have been reduced and resolved by the amended plans. As indicated by Mr Merlino in his closing submissions, the issues now in contention relate to the elevated height of the rear yard and the walkway. That is the walkway between the rear of the dwelling house and the terrace above the garage on the rear laneway. 3 The site and the adjoining area: This is a most significant street in Paddington and is covered by the heritage conservation area. The building is the late Victorian Italianate terrace. As I stated, it is not one of group but has a zero lot boundary with the adjoining terrace style houses. It is part of the historic Underwood Estate and Paddington is of national and world heritage significance in terms of it being the largest area of Victorian terraces generally intact. 4 The subject site has dimensions of 32 metres in length and 6 metres in width, with the frontage to Paddington Street and rear vehicular access to Paddington Lane. The topography slopes from south to the north with approximately 3 metres change from Paddington Street to the rear lane. On the site there is an existing 2-storey brick terrace style dwelling house with zero boundary setbacks to the adjoining properties at No. 96 and No. 100. The rear yard of the properties have a nor/nor-west orientation which I will refer to as the northern elevation. 5 At the rear of the site, as noted, the garage is erected and currently on the site, when one walks from the rear lane through the garage to the backyard area, there are a series of steps up and down and the low tier hard paved area the applicant in these proceedings is seeking to raise by approximately one metre. The current area of what is the recessed courtyard at the moment is 5.5 x 3 metres and it is proposed that there be a walkway between the existing floor level of the living area to the rear deck over the garage and that there also be a raised deep soil planting area approximately one metre above the existing hard paved bottom courtyard in the middle of the site. This new deep soil planting area will be some 3 by 3 metres, providing approximately 9.5 square metres of deep soil planting. There are proposed stairs on the eastern side of the boundary in the rear yard as well and the walkway or the link is on the western side with a planter box between the subject property and the boundary. 6 It can be seen by the plans provided to the Court in Exhibit A, the amended plans, that or the boundary fence to No. 96 will be increased by approximately 1.11 millimetres with a lattice screen and this is adjoining a landscaped area and the walkway. Adjoining No. 100, the eastern property, there is no increase in the boundary fences. The owners of Nos. 96 and 100 have had the opportunity to comment on the amended plans and indeed engaged a consultant, Mr Smith, to provide assistance in their consideration of the matter. 7 The Court also heard evidence from Mr Colin Brady, a heritage architect for the applicant and Ms Thom provided heritage advice for the council. Mr Fotos is the councils town planner, the team leader for Paddington area, and he provided evidence to the Court. Ms Askin for the applicant is the consultant planner and Mr Barker, the architect of the proposal, also gave evidence to the Court. 8 Mr Barker provided a description of the amendments and he stated that: "the architectural rationale was for the incorporation of increased landscape area. The increase in deep soil planting, a contiguous link between the internal and external spaces, that is the walkway link on the western boundary, and the courtyard at a level above the existing hard paved area in the middle of the subject property." 9 The other objectives of the architect included that the laundry and service areas be relocated inside the footprint of the house. (This does require some excavation and I will provide comments later in this regard). This space would be a non-habitable area in terms of providing storage and the laundry facilities for the subject building. Originally these facilities were at the rear of the garage. Relocating them provides the opportunity to create deep soil planting. 10 The Court must have regard to the planning regime and the subject site is zoned under the Woollahra Local Environmental Plan 1995. The aims and objectives of this plan relevantly include "to conserve the environmental heritage of the area of Woollahra to protect the amenity and natural environment of the area of Woollahra." 11 In relation to heritage conservation under 1G this states. (i) To identify heritage items and heritage items conservation areas and to provide measures for their conservation protection enhancement. (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 areas. 12 The subject site is zoned 2(a) and relevantly the objectives include "to maintain the amenity and existing characteristics of areas, predominantly characterised by dwelling houses." I cite this as under cl 8(5)) "the council shall not grant consent to the carrying out of development unless it is of the opinion the development is consistent with such objectives of this plan and the zone within which the development is proposed to be carried out." 13 There are relevant provisions with respect to excavation and the excavation of land the council may decline under cl 18(2) to grant consent unless it has considered a specialist report, including geotechnical reports, structural engineering reports, hydrology reports and dilapidation reports of properties which may be affected by the proposed excavation. Suffice to say that excavation was raised as an issue by the council and there has been a deferred commencement condition proposed which would require a geotechnical report to satisfy the provisions under this clause, which has been agreed to between the parties. 14 Clause 28 of the LEP refers to the heritage conservation areas and the council once again must take into consideration the effect on the heritage significance of the heritage conservation area. 15 The comprehensive development control plan for Paddington has been cited on numerous occasions during these proceedings. Having regard to the approach that I must adopt in terms of Zhang v Canterbury City Council [2001] NSWCA 167, where I must give real, genuine, proper consideration to the DCP, I have comprehensively assessed the development application in the context of the DCP having regard to a holistic reading of the document. 16 The preliminary introduction to the Plan states that: Paddington's sense of place and its significance relates from a multi-laid interrelation of various built forms and spaces and historical and social values. Conservation of Paddington so as to retain its national heritage significance should be the foremost outcome of all development works. The significance of a place, whether it be a public space or private land, needs to be identified, recorded and understood. Paddington is a living place which will continue to undergo change. Appropriate contemporary design is encouraged and is necessary if change is to occur, which respects the significant characteristics of Paddington. The relevant provisions relating to an important factor in the significance of Paddington is its exceptional unity, encompassing scale, character, history, architecture and urban form. Paddington has a unique aesthetic significance due to the superimposition of the built form on a sloping topography which overlooks Sydney Harbour and its foreshores. The coherent and extensive Victorian built form comprising groups of terrace buildings on narrow allotments which step down hills, turn corners or sit in ranks along tree-lined streets produced a singularly recognisable image. 17 There are a number of character elements identified at 2.2 including the topographical form of Paddington itself as a world heritage area and the variable and intricate street and lane networks. The provision identified by the respondent include "some laneways which retain culturally significant fabric, including paling fence, pedestrian gates, brick lavatories and backyard planting." There are a number of character elements identified in the plan and while I will not go into greater detail as this is an extempore judgment, nonetheless I have had regard to all the provisions of that DCP. 18 To summarise the evidence that was given to the Court, Mr Fotos is of the opinion that raising the level of the backyard, that is as I described the area previously, approximately 3 x 3 square metres, would impact or disturb the historic subdivision of the area and it would eliminate the traditional levels of rear yards. He also raised overlooking and overshadowing and in his opinion the heritage value would be diminished. Mr Fotos stated that it is his duty to uphold the provisions of the development control plan. 19 Ms Askin gave evidence to the effect that the subject property can be distinguished from other properties, in particular the adjoining properties, as there is no lower ground floor. The floor to ceiling height of the bottom level of this terrace compared to the adjoining properties does not provide for habitable areas. She also states that there is a garage erected at the rear of the subject property with stairs up into the subject site. In her opinion, the proposal responds to its context and provides for a useable open space area without adverse impacts on adjoining properties. She notes that there are stairs and landscaping provided to both the eastern and western boundary which she considers acts as a buffer. In her opinion, there is no significant impact on adjoining properties in terms of acoustic or aural privacy or in terms of overlooking. 20 Mr Smith provided assistance to the neighbours at No. 96 and 100 in a detailed condition, agreed to between the parties, for a system of louvres between properties and also in terms of ensuring the landscaping is maintained to a certain level for the continued enjoyment of the adjoining properties in terms of district views and vegetation. 21 The applicant's heritage consultant is of the opinion that the cohesive fabric of the buildings and the streets would not be impacted or diminished by the proposed development and that the rear yard is not visible from the laneway. The Court also had the opportunity of walking the laneway to understand the context and the various levels. He says that the rear yard is screened and questions the relevance of having a sunken yard as such. In his opinion, the outcome should be the focus. The fact that the garage is built at the rear with a terrace on its rooftop, that in fact did change the nature of the laneway and that it is representative of the ongoing process of change which is contemplated by the DCP. He is of the opinion that the raising of the level of the rear yard and the walkway element would not have adverse heritage impacts and the proposed development will continue to maintain the historic cohesion of the fabric of both the dwelling house and the conservation area and these would not be adversely impacted. 22 The case of the Senior Commissioner in Super Studio v Waverley [2004] NSWLEC 91 was referred for requiring heightened sensitivity in terms of assessment and also in terms of whether it is reasonable or necessary for the proposal. The circumstances or the facts of Super Studio are somewhat different to the current development application before the Court. Nonetheless, I have given heightened sensitivity to the assessment of this application and it warrants same, given it is within the Paddington heritage conservation area. 23 The Court must have regard to the spirit of the development control plan. The council officer is of the opinion that one cannot change the level of the rear yard and that in itself is a reason for refusal, and furthermore that the cumulative impact of raising the traditional or the historic level of the rear yard, in Mr Fotos's opinion, means that the application does not have merit. He refers to the provisions of the development control plan, in particular those that are in 5.1.5 on p 58. He states that the proposal would also be inconsistent in terms of site coverage, setbacks and levels. 24 Mr Fotos refers to the DCP wherein the provisions contains the explanation that: Paddington is notable for a predominant pattern of repetitive terrace building types on long rectangular blocks running between streets and laneways. The objectives: 1. To maintain setbacks along street frontage. 2. To retain established building alignment setbacks and levels. 3. To ensure that new development responds appropriately to established alignment setbacks and levels. 4. To ensure that the siting of new development responds appropriately to the level established by relevant historic development in the streetscape. 5. To retain and protect front yards and their significant fabric. 6. To encourage retention or creation of useable open space at the rear of sites. 25 The DCP Guidelines and Controls: Whilst the council identified G3 and G5, it is important to have regard to the total context and controls: G1: Existing setbacks on street frontages are to be maintained. Siting and setbacks of structures are to continue the immediate established patterns. Site coverage is not to be disproportional to the adjoining properties. New residential structures are not to be built forward of existing building alignments. Levels established by infill and new residential structures are to reflect ground levels established by buildings in the context of the site. Where the existing ground level slopes and adjoining properties have basement levels, a basement level will be permitted. 26 The other provisions that must be read in the assessment of the application are those under 5.1.6, that is landscaping and private open space. The explanation is: Paddington's characteristically small allotments with their boundary to boundary buildings provide limited opportunities for ground level open space and landscaped areas. In many instances with residential properties, a very small landscaped area occurs in the street front zone. This area is generally not useable as private open space. At the rear of the residential properties there is a greater scope for useable open space and landscaping. The objectives are: 1. To promote landscaping that contributes to the character of the conservation area. 2. To maintain an area at the rear of each site which enables planting at natural ground level and assists on-site drainage. 3. To ensure that provision is made for accessible and useable private open space at the rear of premises. 4. To encourage the provision of semi-permeable and permeable areas of open space in rear gardens to assist with on-site drainage. 5. To ensure that the design and use of private open space areas has regard to environmental impact on the fabric of adjoining properties and impact on the amenity of the occupiers of adjoining properties. 6. To ensure that trees and other vegetation do not have an adverse impact on the fabric of buildings and works and have no minimal adverse impact on the amenity for the occupiers of properties. 27 In particular, the one that has been highlighted is: To ensure that the design and use of private open space area has regard to environmental impact on the fabric of adjoining properties and impact on the amenity of the occupiers. 28 The guidelines and controls for landscaping and private open space state: 1. The required area of private open space for residential properties is to be one-sixth of the site. 2. Onsite detention of stormwater shall be provided by porous and semi-porous services. This should be 50% of the required open space. 3. The area of soft landscaping should be at least 50% of the required private open space. 4. Soft landscaping shall be at existing ground level or at the original garden level. 5. Part of the private open space must be capable of serving as an extension of the dwelling for relaxation, dining, entertainment, recreation and children's play area and should be directly accessible from the main living area of the dwelling. Stairways and ramps may be used to provide access from the building to the open space in cases of sloping sites and grade variations. The raising of open space areas to provide level access from a building may not be acceptable due to the impact on adjoining properties and the significance of the property generally. That is the one that is highlighted for these proceedings. 29 Indeed, I must have regard to a commonsense interpretation of how the provisions are to be read together and not blind adherence to each and every provision to be ticked off as such. In this regard, the Court of Appeal judgment of Zang v Canterbury is of relevance wherein it states: A development control plan is not an environmental planning instrument. Accordingly, the requirement of s 82, that the consent authority must refuse an application that would result in a contravention of such an instrument, does not apply to a development control plan...nor can such a plan contain a non-discretionary development standard which would take away the consent authority's discretion under 79C... The consent authority has a wide-ranging discretion. One of the matters required to be taken into account is the public interest, but the discretion is not at large and is not unfettered...DCP is a fundamental element in or a focal point of the decision-making process. A provision so directly pertinent to the application for consent before the council was...was entitled to significant weight in the decision-making process but was not of course determinative. 30 Mr Fotos is of the opinion that the proposal would have detrimental impact in terms of diminishing the heritage value. I will also state in fairness to the respondent that Ms Thom was unavailable to give evidence, but the Court has the benefit of her written comments and her written comments are to the same effect, that the proposed raising of the rear yard would not be sympathetic to the historic conservation area. 31 Mr Fotos also mentioned the issue of the cumulative impacts and precedent is a matter that this Court does take into consideration in the assessment of development applications. I must have regard to other applicants that might seek to invoke an approval in similar circumstances. The issue of precedent, and I refer to the judgment of his HonourJustice Lloyd in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. 32 However, I am of the view that this development proposal is one that can be clearly distinguished from others and the individual merits of the proposal are such that it warrants approval for the following reasons. 33 I agree with Mr Brady that the heritage significance and importance would not be diminished by the raising of this three by three metre area of the backyard by approximately one metre which would then enable it to provide a walkway link and deep soil landscaping which is currently absent in the rear yard. The sunken muddy area was the term used on one occasion by the applicant, but nonetheless the relationship of the sunken current paved area in the rear backyard of the property is one that does not relate well to the living areas of the subject dwelling. 34 I am satisfied there is no heritage impact and it could not be seen to provide a precedent for the mere raising of other backyard areas. This property is distinguished by the current lack of relationship between any living area and the sunken courtyard area between the garage and the living area of the property. There is no lower ground floor as on adjoining properties that relate directly to their open space areas. 35 The other impacts need to be considered carefully, that is the impacts on adjoining properties as G6 of the DCP 5.1.6 requires. That is "the raising of the open space areas may not be acceptable due to the impact on adjoining properties and the significance of the property generally." 36 G6 states that open space should serve as an extension of the dwelling and the link in terms of the stair between the living area level RL and the top of the garage terrace will provide for an appropriate link. Whilst the guideline states that stairways and ramps may be used to provide access. This may not be the preferred position and impact on adjoining properties must be assessed. However, in my assessment the impacts on adjoining properties are not unreasonable and furthermore, the proposal satisfies the provisions of 5.1.6 in terms of promoting landscaping to encourage permeable areas and on-site drainage. 37 It is unhelpful to selectively identify the provision of levels not being complied with in the DCP as outlined in 5.1.5 where it speaks of to retain established building alignments, setbacks and levels because raising this backyard area of three by three metres square and by approximately one metre could not be seen to be discordant or inconsistent with the overall provisions of the development control plan. In particular, having regard to the overall aims and objectives of the plan and understanding of the context that is provided for in the extensive preliminary part of the plan and understanding the context of sites also referred to in the DCP. 38 As I said, blind adherence to one provision is not the way to interpret a development control plan. One must have regard to a holistic and commonsense interpretation of the spirit and intent of the plan. I am satisfied that the heritage significance of the area is in no way undermined by the proposal before the Court. 39 The impacts, even at their highest, would be exceptionally minimal. I am satisfied with the agreement between the neighbours of the privacy screens, also having regard to the fact that this is a fine grained urban area and one cannot expect the same sense of privacy and absence of overlooking as in much larger allotments of a suburban nature. 40 The very nature of this area, the fine grained fabric is an attractive part of the Paddington conservation area and, as such, a degree of mutual overlooking is part of life in such areas and I am satisfied that there are no impacts arising from the proposed development which would warrant its refusal. This includes the guidance provided in the provision of the DCP about raising levels of rear open space areas to be connected with living spaces. The proposal achieves this as well as the other alterations and additions that are proposed in the plan to make more effective use of the building space of the dwelling house and the alterations and extensions which are sympathetically designed to satisfy the provisions and the aims and objectives of the LEP and the development control plan. 41 The excavation for the service area requires a condition for a deferred commencement and this is no longer an issue. I am satisfied that the integrity of the building, which is most important, can be maintained and a deferred commencement condition for a geotechnical report will satisfy this requirement. 42 The overall proposal maintains the rhythm, maintains the heritage significance and this dwelling will continue to make a positive contribution to Paddington. I note the rear yard that is to be raised will not be visible from the rear laneway and any passer-by would not be and could not be offended by the mere raising of this portion of the rear yard in the context of the Paddington conservation area. 43 The issue of context must be considered; that is the context of this dwelling within the Paddington conservation area, the context of and the circumstances surrounding this development application in terms of the distinguishable facts of this property to other properties and the fact that the proposal provides cohesiveness and connectivity for more useable open space area for the subject dwelling. 44 In this regard, I have been persuaded by the evidence of the applicant that the proposed development has merit and should be approved. 45 I am also satisfied that the proposal will increase amenity, not only to the occupants of the subject dwelling but, in terms of the relationship with the adjoining properties at numbers 96 and 100. The proposal will provide an appropriate level of privacy to the adjoining properties and will not be an overwhelming development. 46 The boundary fence is to be raised on the western side and, in my assessment, it will not have a detrimental effect or an adverse impact on No. 96. There will be some slight increased overshadowing of a morning to that property, but it is not an issue that would warrant refusal of the application, in particular having regard to the northern orientation of these rear properties to Paddington Lane. 47 The proposal is also consistent with the provisions of the DCP in providing for development that continues Paddington's sense of place, resulting in a multi-layered interrelation of built forms, "Paddington is a living place which will continue to undergo change and appropriate contemporary design is encouraged. If change is to occur, it is to respect the significant characteristics of Paddington." I am satisfied that the proposal will in fact provide for this to be satisfied. 48 It is also interesting to note that the DCP emphasises the conservation of Paddington, "as a living urban environment with the built form reflecting changes over time." The glossary at the rear of the DCP for conservation means "all the processes of looking after a place so as to retain its cultural significance." In Burra Charter this includes maintenance and may, according to circumstance, include preservation, restoration, reconstruction and adaptation and will be commonly a combination of more than one of these. 49 In the context of the meaning of conservation the proposal satisfies this. Making the open space far more attractive and useable could not be condemned by merely focussing on maintaining levels of rear yards for a very small portion thereof. 50 Accordingly on my assessment of this application above, the formal orders will be issued on the receipt of the electronic version of the conditions consistent with my judgment which deletes condition C1. 51 The orders of the Court are: 1. The appeal in respect of the property known as No. 98 Paddington Street, Paddington is upheld. 2. The development application No. 229/2007/1 submitted to Woollahra Municipal Council as amended, and shown in the plans prepared by John Barker & Partners, architects project No. 0601 dated 2nd March 2008, is approved subject to the conditions in Annexure 'A'. 3. The exhibits with the exception of A, B, D and 1 are returned to the parties. ___________________ J S Murrell 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.