Anglicar Pty Ltd v Woollahra Municipal Council [2015] NSWLEC 1074

Land and Environment Court New South Wales

Medium Neutral Citation: Anglicar Pty Ltd v Woollahra Municipal Council [2015] NSWLEC 1074 Hearing dates: 26 and 27 March 2015 Decision date: 31 March 2015 Jurisdiction: Class 1 Before: Moore SC Decision: See (59) to (61) below Catchwords: DEVELOPMENT APPLICATION: Heritage conservation area; pitch of the roof and roof form; internal amenity Legislation Cited: Land and Environment Court Act 1979 Cases Cited: Mersonn Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 1475 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Category: Principal judgment Parties: Anglicar Pty Ltd (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Mr S Patterson, solicitor (Respondent)

Solicitors: Gadens Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10596 of 2014

Judgment 1. SENIOR COMMISSIONER: Marine Parade at Watsons Bay is a short cul-de-sac street running along the waterfront at the southern end of the bay. The promenade along the water's edge adjacent to the street is a heritage item under the Woollahra Local Environmental Plan 1995 (the LEP). The area on the landward side of Marine Parade, one allotment deep, forms part of the Watsons Bay Heritage Conservation Area identified under the LEP. This element of the heritage conservation area extends a little distance to the south beyond the turning circle at the head of Marine Parade, running as far as including the dwellings to the east of the promenade as far as Gibsons Beach Park. Abutting element of the heritage conservation area, to the east, is a further element of the conservation area identified under the LEP. 2. 4 Marine Parade (the site) was formerly occupied by a residential flat building that has now been demolished. The application to demolish that building and replace it with a new residential flat building was the subject of proceedings before Tuor C in 2008 (Mersonn Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 1475). That appeal was upheld and a development consent was granted to the then proposal being considered by the Court. 3. The old residential flat building has been demolished but erection of the replacement structure has not commenced. 4. In 2014, the applicant in these proceedings lodged a fresh development application with Woollahra Council (the Council) seeking approval for a replacement design for the residential flat building proposed to be erected on the site. That design proposes three residential levels above a single level of basement car parking. 5. In order to achieve three residential levels, there are two aspects of the now proposed design that warrant observation as being critical in the ability to obtain the proposed development yield sought to be achieved through the 2014 application. The proposed lowest residential level is, as a consequence of the gentle slope rearward of the allotment from its Marine Parade frontage, with its floor level being ~ 1 m below ground level at Marine Parade and ~ 1.5 m below ground level at its rear. Mr Booth, the town planner employed by the Council, who was responsible for the Council's assessment process for the application, raised no town planning objection to this aspect of the proposed development. Mr Booth did indicate, however, during the course of his oral evidence, that he would not consider it appropriate to lower the proposed floor level of this lowest dwelling any further. 6. The second aspect warranting comments is that which lies at the heart of the contest in these proceedings. To achieve the third residential level with 2.7 m floor to ceiling heights at each of these levels, the applicant proposes that there be a pitched roof to the structure (with that pitch being at 13.5° from the horizontal). Pitching the roof at this angle lowers the ridgeline of the proposed structure by ~ 700 mm compared to the ridge height of the development approved in the 2008 proceedings. The ridgeline has also been moved to the north of the location approved in 2008. 7. The effect of the lowering and relocation of the ridgeline together with a pulling back to the north of the southern wall at the uppermost level is to create, for dwellings to the rear of the site, a view corridor between the proposed building on the site and the existing structure on the adjacent site to the south, 3 Marine Parade. The lowering of the ridgeline would also lessen the impact of a new structure on the site on the views over the site from the dwelling immediately to its rear. 8. The proposal is permissible with development consent.