Caffrey M and Anor v Waverley Council [2007] NSWLEC 616

Land and Environment Court of New South Wales

CITATION : Caffrey M and Anor v Waverley Council [2007] NSWLEC 616

APPLICANT: PARTIES : Melanie Caffrey and Craig Blair RESPONDENT: Waverley Council

FILE NUMBER(S) : 10689 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Heritage impact

Waverley Local Environment Plan 1996, (WLEP) LEGISLATION CITED: Waverley Development Control Plan 2006, (WDCP) Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED: Totem Queens Park Pty Limited v Waverley Council [2004] NSWLEC 712 Bly C 21 December 2004

DATES OF HEARING: 13 September 2007

DATE OF JUDGMENT: 25 September 2007

APPLICANT: Mr G A Green, solicitor with Ms R McCulloch, solicitor SOLICITORS: Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr S J Brockwell, barrister, instructed by Ms K Allen, solicitor SOLICITORS: Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

25 September 2007

10689 of 2007 - Melanie Caffrey and Craig Blair v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Waverley Council (the council) of a development application to alter and add to a single-storey heritage listed dwelling to provide a new kitchen, an upper level extension and an in-ground pool at Lot 3, DP 308188, being No 14 Gipps Street, Bronte. 2 I visited the land in company with the parties on the morning of the hearing and heard from local residents. 3 I have concluded that the application should fail for reason of the proposal having an unsympathetic relationship with the heritage-listed dwelling on the land and the group of nearby houses. The land 4 The land is situated on the northern side of Gipps Street and is occupied by a single-storey Federation style dwelling of considerable architectural merit. The existing residence 'Wairuna' is the easternmost residence of a highly cohesive group of four near-identical houses being Nos. 8, 10, 12 & 14 Gipps Street; all of which are local heritage items. The house and the group provide a significant contribution to the established streetscape and to the locality. Each heritage-listed dwelling, except No 12 Gipps Street, has a pyramidical roof form. No 12 Gipps Street has been extended with a hipped roof of similar pitch that disguises the original roof form. 5 The land is rectangular in shape with a frontage of 12.28m, a depth of 34.745m and an area of 427m2. The land slopes gently down from the front to the rear with a fall of about 1m. 6 The area is residential in character but is not included in the Bronte Residential Character Study. 7 Nearby, there are single-storey and two-storey dwellings of various architectural styles from the early decades of the 20th Century. The existing dwelling is part of an ensemble of Federation and transitional Federation masonry cottages on the northern side of Gipps Street that were evidently all built in a matching architectural style with identical siting, though Nos 4 & 6, due to unsympathetic renovation, retain only their original roof form and front set back. The intact group of four retain their original street-front facades and similar rear setbacks. Relevant planning controls Waverley Local Environment Plan 1996, (WLEP) 8 Under the provisions of the WLEP the land is zoned 2(a) residential and the proposal is permissible with consent. 9 No 14 Gipps Street, 'Wairuna' is listed in Schedule 5 – 'Heritage items' - of WLEP as 'Nos 2, 8-14 Gipps Street'. Part 4 – 'Heritage provisions' of the WLEP addresses the protection of heritage items. 10 Under the provisions of the WLEP cl 3 'Specific aims' in relation to heritage conservation the council seeks: (a) to conserve the environmental heritage of the Council's area; (b) to integrate heritage conservation into the planning and development control process; (c) to identify heritage items, heritage conservation areas and archaeological sites; (d) to ensure that development does not adversely affect the heritage significance of heritage items, heritage conservation areas and archaeological sites and their settings; (e) to control the demolition of heritage items and building and works within heritage conservation areas; and (f) to provide for the control of development associated with or in proximity to heritage items and heritage conservation areas. 11 Clause 45 of the WLEP specifies development may only be carried out only with development consent. 12 Under cl 45(3) WLEP: When considering whether a development application is required by this clause the Council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item… 13 Under cl 45(4) WLEP: The Council may refuse to grant a consent required by this clause until it has considered a conservation plan so as to enable the Council to fully consider the impact of the proposal on the heritage significance of the item and its setting… 14 Under cl 49 WLEP: The Council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item…and on its setting, when determining an application for consent to carry out development on land in its vicinity. 15 So the Court on appeal need consider the impact of the proposal to alter and add to No 14 Gipps Street on the heritage significance of the item and its setting and on the heritage significance of other items and their settings in the vicinity. Thus the impact of the proposal on No 12 and No 10 Gipps Street comes into consideration. Waverley Development Control Plan 2006, (WDCP) 16 The WDCP applies to the land including Part D1 - Dwelling House and Dual Occupancy Development. 17 Under Part H1, WDCP, cl 1.0, p 2 the heritage objectives are: (a) Provide design guidelines and principles to ensure that the significance of heritage items… are not adversely affected by new development. (b) Provide a consistent and coherent policy for applicants, Council officers and the community for the assessment of applications affected by heritage controls. (c) Encourage alterations and additions to heritage property, which are sympathetic to the character and quality of the existing building and streetscape. (d) Discourage development and works, which will adversely affect the heritage significance of a heritage item… 18 Under Part H1, WDCP cl 5 pp 10-17 under the heading of 'Planning Parameters' design principles; scale and proportion; shape; materials; roofing materials and roof form; fitting into the context of your street and area; land size and siting; site planning priorities; siting of car accommodation; modifying existing facades; fencing; materials and details are mentioned. 19 Under Part H1, WDCP, cl 4.4, p 9 under the heading of consultation with council: Applicants are strongly advised to consult with Council's Planning staff before considering any work to a heritage item… Council advises that applicants show Council staff their proposals in sketch form initially before going to the expense of having detailed plans prepared. The proposal and its history 20 Development application No 754/06 was lodged with the respondent council on 15 December 2006 to demolish, alter and add to a single-storey dwelling on the land: · At ground floor: demolish an existing 1970's single-storey rear addition and construct new open plan kitchen and living area plus laundry on the lower level. The lap pool will be constructed at the rear of the new addition. · At first floor: new level constructed above new addition to include main bedroom & en-suite and study. Notification 21 The application was formally advertised for 50 days from 21 December 2006 and notified to nearby property owners and occupants and the council received five submissions. The following issues were raised in the submissions: · Non-compliance with the WDCP regarding height and bulk, rear setback, streetscape impacts, privacy and noise control, landscape component; · concerns with noise impacts from swimming pool activities; · overlooking as flat roof could be used as deck; · concerns that the proposal does not match renovations of other heritage dwellings nearby in form, materials and orientation; · building form isolates new from old and does not match surrounding dwellings: and · is not a sustainable design.