Land and Environment Court New South Wales Medium Neutral Citation: First Point Project Management v Woollahra Municipal Council [2013] NSWLEC 1272 Hearing dates: 18 November 2013 Decision date: 19 November 2013 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is upheld. 2. The Council is directed to issue a building certificate for the lychgate in accordance with the building certificate application lodged on 17 October 2013. 3. The exhibits are returned upon publication of the judgment. Catchwords: APPEAL- Building certificate - construction of a lychgate - impact on streetscape - views to the historic residence and its garden setting from the public domain Legislation Cited: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 Woollahra Residential Development Control Plan 2003 Category: Principal judgment Parties: First Point Project Management (Applicant) Woollahra Council (Respondent) Representation: Ms S Vatala (Applicant) Mr S Patterson (Respondent) Addisons Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10863 of 2013 Ex tempore Judgment 1On 17 October 2013 the applicant lodged an application for a building certificate with Woollahra Council in respect of a lychgate (the development) at the entry to 6 Wolseley Road, Point Piper (the site). 2On 6 November 2013 the Council decided to refuse the application. In response, the applicant exercised its right of appeal to the Court against the Council's decision under s 149F(1)(a) of Environmental Planning and Assessment Act 1979 (the Act). 3On hearing an appeal lodged under s 149F(1)(a) the Court, under s 149F(3), may do any one or more of the following : (a)It may direct the council to issue a building certificate in such terms and conditions as a court thinks fit; (b)It may revoke, alter or confirm a notice under section 149C; (c)It may make an order that it considers appropriate. 4In this case I have decided to direct the Council to issue a building certificate for the development for the reasons that follow. The development 5The development is an open structure with a gabled roof form facing the street. It is supported by timber piers over a sandstone base and has a slate roof to replicate the style of the existing house and garage on the site. The entry point is marked by clear decorative wrought iron gates and is the entry point in the fence to the applicant's home called 'Beaufort'. 6Over recent years the site has been redeveloped and has a new front timber paling fence on a brick base with sandstone capped brick piers. The lychgate is located at the southern end of the site and is set back 1.5m from the southern boundary of the site. The structure (including the supporting piers) has a width of 2.2 m at the street frontage and, a height of 2.5 m to the eaves and 4 m to the ridge line. Contentions 7The Council has characterised the development as part of the replacement front fence for the site and assessed it against the front fence controls in section 5.4 of the Woollahra Residential Development Control Plan 2003 (RDCP). It contends that the entry gate and roof of the development exceed the maximum height control in C4.5.7.6 of the RDCP by 2m and, that this non-compliant feature does not contribute to a positive streetscape environment which is a relevant objective in O5.4.1 of the RDCP. 8The Council also contends that the development does not meet the Desired Future Character objective in 04.5.2 for the Point Piper Precinct because it obscures views through an established garden setting of a historic building and adversely alters streetscape elements. 9In short, the development presents adverse bulk and scale in the streetscape and should not be given a building certificate. 10According to the applicant the lychgate was designed to provide security for the residents and visitors to the site and to highlight the main pedestrian entry to the property in a street which the applicant contends was not otherwise apparent. In contends that the lightweight structure achieves that purpose and also opens up views to the dwelling and its garden setting in this part of Wolseley Road from the public domain. It contends that it is an improvement in the streetscape. 11The applicant rejects the characterisation of the development as part of the replacement front fence and describes it as an "ancillary structure" under C.5.2.4 of the RDCP. Although the development is slightly higher than the maximum height control for ancillary structures the applicant submits this technical breach of the control does not cause any adverse impact in the streetscape. In the ultimate the applicant contends that strict compliance with the RDCP controls for ancillary structures should be relaxed in this case because the objectives of the RDCP are achieved notwithstanding the technical numerical non compliances. Background facts 12The applicant's statement of facts and contentions sets out the background facts, the statutory controls and the contentions between the parties (Exhibit 1). 13It records that the site is zoned Residential 2(b) under the Woollahra Local Environmental Plan 1995 (the LEP) and subject to the objectives and controls in section 4.5.1: Desired Future Character -Point Piper Precinct of the RDCP. 14Relevantly, the site fronts Wolseley Road which is the main access to the Point Piper. It is located on the western and lower side of the road, to the north of the intersection of Buckhurst Ave. 15The site contains a two storey residential dwelling, known as Beaufort, which is located on the site below road level, together with a free standing two level garage at street level on the northern end of the street frontage. 16Beaufort is an historic dwelling which was built in the First World War period. It was originally built to face south and address Buckhurst Avenue, but later subdivision of the land has resulted in the dwelling having no frontage to Buckhurst Ave with a side elevation now facing Wolseley Road. The eastern front boundary of the site is at street level. The land then drops off from a sandstone retaining wall and the remainder of the site is below street level. 17Despite its historic interest, the property is not a heritage item or within a conservation zone under the Council's controls. It is however, located within the vicinity of a residential flat building located at 16-18 Wolseley Road, known as Danmark, which is a heritage item listed under the LEP. 18The area is characterised by large dwellings and residential flat buildings of varying styles and ages. To the north of the site is 8 Wolseley Road which is occupied by a single dwelling house and a triple garage which occupies the majority of the frontage to Wolseley Road. 19Further to the north of the site is 10 Wolseley, a battle-axe lot occupied by a residential flat building marked by a high masonry entry gateway. The gateway adjoins the high masonry wall and double garage on the frontage of 12 Wolseley Road. There are similar garages located on the frontages of 14, 16-18 and 20 Wolseley Road. The applicant's evidence 20According to the applicant's heritage expert, Clive Lucas, and its planner, Harvey Sanders, the development makes a positive contribution to the residences and the streetscape in this part of Wolseley Road. 21In particular, it responds to the streetscape character of the Point Piper Precinct, as detailed at C4.5.1 of the RDCP, by contributing to the rich mixture of architectural styles and forms within the Precinct and by providing a minor built structure which is compatible in design with the existing residence and satisfies the general objective in Part 5 - 0.5.1.1 of the RDCP. 22According to Mr Lucas, the development "...draws attention to the house at 6 Wolseley Road which previously had no presence in the street (Annexure 3 to the Statement of Environmental Effects prepared by Design Collaborative dated August 2013 (Exhibit 2)). 23In highlighting the entry point to the house, the development does not, according to applicant's experts, unduly interrupt views from the street because the design provides for a substantial break between the development and the existing garage on the street frontage: C4.5.2 of the RDCP. Additionally, the front fence is of a height to allow views over it as well as being partially open to allow views through it. These features, according to the applicant's experts, (together with the smaller break of around 2 m between the development and the existing garage/entry gate on the neighbouring property to the south at 4 Wolseley) ensure that the views from the public domain to the house and its garden setting are maintained which is an objective 04.5.3 of the RDCP. 24In fact, Mr Lucas is of the opinion that "The end result is effective invisible mending, i.e. the structure is totally suited to the property and appears to have always been there." In his assessment 'Beaufort' and its immediate locality have been enhanced by providing a streetscape element that is actually common in the area and helps strengthen the understanding of the architectural development of Point Piper. According to Mr Lucas' evidence, the new lychgate at 6 Wolseley Road is a sympathetic and well-constructed structure adding both character to the property and highlighting the place's architectural detail by providing a much needed design element to the streetscape in this part of Wolseley Road. 25Mr Sanders agrees with Mr Lucas' expert heritage assessment. From a planning perspective he added that the structure serves a practical purpose in providing a covered entry space to the site and, a logical location for bin storage and an obvious pedestrian entry point to the residence. 26Mr Sanders considers the structure - which is open on all sides- to be of minimal bulk and scale particularly, when compared with nearby garage structures. Its open wrought iron gates on the street frontage allow views from and into the site and for those reasons he believes it must be assessed as acceptable in the streetscape. While Mr Sanders does not believe the development is part of the fence, he was of the opinion that if it were characterised as a fence it also achieves the performance criteria for a front fence and the wall controls in Part 5 of the RDCP, in particular, C.4.5.2, C.4.5.3, C.4.5.4, C.4.5.5 and C.4.5.7. Council's evidence 27The Council's planning expert Ms Richards takes a very different view to the applicant's experts. Her opinion is expressed in detail in the development application assessment report at folio 11, the supplementary reports at folios 18, 19 and the further assessment report at folio 101 in (Exhibit A). In summary, Ms Richards is of the opinion that the development is a structure which is not anticipated by the planning controls and is an unnecessary bulky element in the fence and streetscape. She believes it should be removed because it breaks up the continuity of the residential façade at street level. 28Ms Richards is of the opinion that the structure is too high and too close to its southern neighbour. In her assessment, the development's setback (between 1.5 m and 1.9 m from the southern side boundary) results in a non-compliance of 1.5 m in terms of C4.5.4 of the RDCP. This feature of the development is, in her opinion, unsatisfactory and results in an intrusive element in the street. 29In Ms Richards' assessment the frontage of the dwelling and its entry is already "readily apparent from the street". Therefore, the development without the lychgate achieves the RDCP controls outlined in C5.1.1. 30Ms Richards' evidence is that the lychgate does not comply with the front fence height controls in the RDCP: C4.5.7.6 and, as a result, the structure has an adverse impact on the streetscape. It inhibits views from the public domain to elements of the residence and its setting in the landscaped gardens. These impacts, in her assessment, are contrary to the aims and objectives referred to in cl 8(5) of the LEP. In summary, she is of the opinion that the development does not promote, retain and enhance an attractive public environment, and therefore it fails to satisfy the provisions of C2 (2) (k) (i), (ii), and (iii), and Part 2 cl 8(5) of the LEP (at folio 106 (Exhibit A). 31In the ultimate Ms Richards is of the opinion that the lychgate is "...an intrusive element in the streetscape that does not respect or enhance the existing elements of the local neighbourhood character that contribute to the Point Piper precinct." 32While conceding that there is some opportunity for a flexible application of the RDCP provisions and, that the Council has on at least five occasions, relaxed the RDCP provisions for other developments in the locality, she does not believe the facts of this case justify a flexible application of the controls. In her opinion, the lychgate development is new development and, as such, the RDCP provisions need to be applied without compromise. Consideration 33Having had the opportunity to view the site in its context I must agree with Mr Lucas' description that "The streetscape presents, but for this site, as a walled environment with garages and solid front fences built to the front alignment, substantial dwelling houses and residential flat buildings, a variety of ages and styles". 34To the north of the site, as Mr Sanders pointed out at the view, there is a single dwelling house with a triple hipped roof garage taking up the majority of the frontage of Number 8 Wolseley Road. Further north, at the entry to 10 Wolseley Road, is a battle-axe lot occupied by a residential flat building marked by a high masonry entry gateway. Next to that gateway is another high masonry wall and double garage at the frontage of Number 12 Wolseley Road. Similar garages are built to the north of the site at the frontages of the properties at 14, 16, 18 and 20 (a battle-axe lot) Wolseley Road; to the south of the site at 4 Wolseley Road is a single dwelling and a double door brick garage with an adjoining entry gate adjacent to the common boundary with the subject site. 35Opposite the site, on the eastern side of Wolseley Road, there are more residential flat buildings and residences with double garages and high walls at the street frontage. 36Having regard to the disparate styles of development observed at the view, I understand why this part of the Point Piper Precinct is not a conservation area, despite containing the heritage item known as 'Danmark'. The southern portion of Wolseley Road is, as Mr Lucas told the Court, "...not particularly consistent in style or form" and for that reason I accept his expert evidence that "the introduction of the development has had a positive impact on the character of the street by providing a streetscape element that is actually common in the area and helps to strengthen the understanding of the architectural development of Point Piper" (Annexure 3 Exhibit 2). 37I do not believe that the development under review can be characterised as a front fence. It clearly serves a different purpose and should be treated as an ancillary structure which marks the entry to the residence and discretely offers a bin storage area. I accept Mr Sanders and Mr Lucas evidence about its purpose and function. I do not accept as Ms Richards states in her evidence that the development is either bulky or out of scale with surrounding development and unnecessary. On the contrary, it is, as described by Mr Sanders, an open looking ancillary structure in an otherwise fenced environment. 38In marking the entry to the residence, I accept Mr Lucas's assessment that the height of the development is acceptable because it has no adverse impact in the existing streetscape or public views. Furthermore, I accept Mr Lucas' evidence that there is a need to better identify the entry point of this residence in the street, because the subdivision of the land has resulted in the house effectively having no frontage and it is the side elevation that now faces Wolseley Road. The development achieves, as Mr Lucas concludes in his report to the Court, a "...much needed design element. It highlights the pedestrian entry point to the property and draws attention to the house which I can appreciate would otherwise have had no presence in the street". 39I accept the applicant's submission, based on the evidence of Mr Lucas and Mr Sanders, that the development generally complies with the controls in the RDCP for ancillary structures and where it does not the circumstances warrant a flexible application of those controls. As stated by Mr Sanders' the former 1.8 m high fence which was erected along the frontage of the site would have blocked views of the residence and its garden setting from the street and its replacement with an open lower fence and this development in fact opens up views for the public, consistent with the objectives in the Council's controls. 40For the reasons stated I am satisfied on the evidence that the development "links the house to the gate and invisibly mends or completes the residence in the streetscape". After a consideration of the public interest and the peculiar facts of this case against the relevant planning controls I make the following orders: 1. The appeal is upheld. 2. The Council is directed to issue a building certificate for the lychgate in accordance with the building certificate application lodged on 17 October 2013. 3. The exhibits are returned upon publication of the judgment. Susan Dixon Commissioner of the Court Amendments 21 October 2014 - lynchgate changed to lychgate Amended paragraphs: various 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. Decision last updated: 21 October 2014