Land and Environment Court of New South Wales CITATION : Leal v Woollahra Municipal Council [2008] NSWLEC 1312 APPLICANT Michael Leal PARTIES : RESPONDENT Woollahra Muncipal Council FILE NUMBER(S) : 10348 of 2008 CORAM: Hoffman C KEY ISSUES: Development Application :- garage and loft, conservation of streetscape, bulk, enclosure, loss of amenity and privacy Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Paddington Development Control Plan 1999 DATES OF HEARING: 24/07/2008 EX TEMPORE JUDGMENT DATE : 24 July 2008 APPLICANT Mr D. Wilson, barrister, Instructed by Mr D. Thomas, solicitor, LEGAL REPRESENTATIVES: of Wellings Lawyers RESPONDENT Mr J. Merlino, solicitor, of Home Wilkinson Lowry Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 24 July 2008 10348 of 2008 Michael Leal v Woollahra Municipal Council JUDGMENT 1 This is a Class 1 appeal between Leal and Woollahra Council in regard to the refusal of a single garage with loft over the rear of No. 136 Paddington Street, Paddington. 2 Paddington Street is one of the few long straight streets in Paddington with a magnificent canopy of trees arching over the roadway and rows of intact, well-maintained terraces and some detached houses on either side. At the rear of the subject site in Paddington Lane being a laneway serving houses in both Paddington Street and Windsor Street. 3 The proposed garage and loft is directly on the rear boundary and would have a gable roof. It is an approximate match of the existing garage and loft over its neighbour No. 138 Paddington Street. The other neighbour at No. 134 has an open backyard with no garage and a large eucalypt tree almost on the common boundary of No. 136. 4 No. 136 has an existing roller door entry and a concrete parking space at the rear lane level with steps at about the halfway point of the backyard up to a terrace outside the living rooms of the house. There is a tree on No. 136 within the footprint of the proposed garage, apparently it has been given consent for removal due to its impact on the garage at No. 138. 5 The proposed loft on No. 136 is to be reached by stairs adjacent to the boundary of No. 138, but due to the masonry fence between, and the stairs entering the envelope of the garage halfway up, there is no chance of overlooking the adjoining private open space. Persons on the stairs could see some rear windows of the adjoining terrace houses. 6 The issues between the parties before this hearing, and before amended plans were produced, had been in summary: o under the Woollahra Local Environmental Plan 1995 , the development did not comply with the objectives of protecting and enhancing natural landscapes, and o the retention of trees and planting of suitable replacement trees in the appropriate location, and o ensuring that the development does not detract from the heritage significance of the conservation area, and o consideration of the site coverage, set-backs and levels under the Paddington Development Control Plan, 1999 (DCP); the landscaping and private open space requirements; and requirements for acoustic and visual privacy for neighbours; stormwater management, and o the public interest, which had arisen through objections to the proposal. 7 At the time of hearing the amended plans had satisfied the Respondents' concerns and draft conditions had been agreed except for conditions C1, a & e. The former deals with matching up the length of the proposed garage with that on No. 138, and the latter deals with frosting the lower pane of the loft window facing the laneway. 8 The hearing was carried out on-site and the attendees were for the applicant: o Mr D. Wilson, counsel; o Mr D. Thomas, solicitor; o Ms S. Leal, applicant's sister; o Mr D. Goodyear; town planner; o Mr G. Palmer, arborist. The attendees for the respondent were: o Mr J. Merlino, solicitor, o Ms S. Wright, graduate, o Mr A. Gilderdale, town planner, o Mr David Grey, arborist. Also attending were Objectors: o Mr G. & Mrs J Dudley of 140 Paddington Street, o Dr N. Mistilis of 123 Windsor Street, o Mr J. Mant for Paddington Society. 9 Mr Mant said that the amended plans had satisfied the Paddington Society and its objections were withdrawn. He said he was satisfied that the tree on No. 134 will be safe due to special investigation by the arborist and particular conditions and the revised plans; also that the height of the garage and loft now complied with the Council's DCP as well as the landscaped area requirements for the site. 10 Dr Mistilis, of No.123 Windsor Street, is diagonally across the lane from the proposed loft. She is concerned and said her neighbour, at No. 125, the Clarksons, who are directly opposite the loft are still concerned in regard to privacy. The loft window of No. 138 is similar to the proposal and it is frosted glass, but the bottom pane of the window is not fixed. When raised, Dr Mistilis and the owner of No. 125 can see persons in the bathroom of the loft in No. 138. The Council says that the proposal should have the bottom pane fixed and frosted in the loft window. Even though there is 20 m separation between the proposed loft window and No. 125's bedroom window opposite the view is unobstructed. 11 Although the subject loft window is not into a bathroom, the loft does have a bathroom and could give rise to similar sights as complained of. I have reached the conclusion that for more abundant caution and privacy, a frosted and fixed bottom pane is reasonable. 12 Concerns of bulk and enclosure also occupied Dr Mistilis and Mr and Mrs Dudley's objections and related to the construction of various garages on the rear lane over a period of years. Over those years they say it has created a feeling in their backyards of less openness and enclosure that reduces their amenity. Generally speaking they oppose such developments. They also noted that in the Council currently adopted controls for Paddington, lofts are precluded. 13 The respondent advised however that there is a saving clause in the new control which applies to the application, and therefore the appropriate control is the previous The respondent advised however that there is a saving clause in the new control which applies to the application, and therefore the appropriate control is the previous Paddington Development Control Plan, 1999 ( DCP). In that the Council controls permit the use of the laneways for garages with lofts over. That control is particular about allowing laneways to have such services and facilities, so that there can be stricter control on main street frontages. Given the proposal's compliance with the controls of the applicable document therefore, this proposal with a garage and loft over cannot be refused due to the presence of the loft. Merit assessment is required. There were also shadow diagrams revealing that the proposal would cause little concern to its neighbours. 14 The Dudleys also were concerned about the condition in the Council's draft, about requiring the lengthwise extension of the proposal by about 400 mm compared to the development application drawings in order to match the length of the garage to that of No. 138. The Council wants that in order to match up the two buildings as a tidier appearance and a better long-term contribution to the Paddington character where terraces tend to line up for architectural presentation. 15 The Dudleys said in their opinion the match up of the two, especially making the proposal larger, only increases the bulk when it should be reduced. They also noted that the traditional lining up of terrace houses, only really occurs on the main street frontages. At the rear alignment, the facades often do not line up and they directed my attention to the rear elevations of No.s 130-140 Paddington Street visible from the site's rear garden to see the obvious non-alignment of facades. 16 I asked if the garage loft of the proposal matched up in height to that of No. 138. Apparently the proposal is about 100 mm higher at the eaves and at the ridge, compared to No. 138. It seems the two will not exactly match and making the proposal the same length will just emphasise this difference. In my opinion it is better to step the buildings lineally, especially to keep the proposal as in the plans about 400 mm shorter than No. 138, the non-match of their heights will be much less obvious and a better urban design outcome facing the rear elevations and courtyards of the terraces. Facing the laneway, the facades will be in alignment to give the desired lanescape appearance of council. 17 Overall, there is nothing otherwise sufficient for refusal of the proposal subject to appropriate conditions. Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted for a garage and loft at rear of No. 136 Paddington Street, Paddington as shown in the plans in Exhibit A, as listed in, and subject to the conditions in Annexure 'A' hereto. 3. The exhibits are returned to the parties, except for A, B, 1, 3 and 7. ___________________ K. G Hoffman Commissioner of the Court kb 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. 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