Onikul & anor v Woollahra Municipal Council [2015] NSWLEC 1345

Land and Environment Court New South Wales

Medium Neutral Citation: Onikul & anor v Woollahra Municipal Council [2015] NSWLEC 1345 Hearing dates: 14-15 July 2015 Date of orders: 20 August 2015 Decision date: 06 August 2015 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld – see [107] Catchwords: DEVELOPMENT APPLICATION: Demolition of a contributory item; architectural heritage, streetscape. Legislation Cited: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 Woollahra Local Environmental Plan 2014 Cases Cited: Helou v Strathfield Council [2006] NSWLEC 66 Category: Principal judgment Parties: Naum and Rita Onikul (Applicants) Woollahra Municipal Council (Respondent) Representation: Counsel: I Hemmings SC and J McKelvey (Applicants) S Flanigan (Respondent)

Solicitors: Leon Ratner, & Legal (Applicants) Norton Rose Fulbright Australia (Respondent) File Number(s): 10365 of 2015

Judgment 1. COMMISSIONER: John Street Woollahra is characterised by a relatively eclectic mix of single and two storey Victorian terraces and semi-detached dwellings interspersed with contemporary two storey free standing and attached dwellings, some with garages or carports in the front setback. 2. At 58 John Street (the site) is a modest single storey dwelling set slightly back from its western neighbour and with hardstand car parking in the front setback. The house, known as the 'Reynolds House', was designed by the prominent Australian architect Glen Murcutt and constructed between 1978 and 1979. 3. Relevantly, during the development assessment phase of the Reynolds House, the council required design changes to ensure that the building would relate to, and not dominate, the single storey cottage at 56 John Street. In 1980 the Australian Institute of Architects conferred a Merit Award for the Reynolds House. The jury citation (see [33]) identifies the relationship between the Reynolds House and 56 John Street to be one of its best characteristics. Shortly after the completion of the Reynolds' House, the dwelling at 56 was demolished and the current two storey contemporary dwelling constructed in its place. 4. In 2009, Woollahra Council granted development consent to the then owner of the property for alterations and additions prepared by Mr Murcutt. Shortly before the lapsing of consent, the former owner commenced work on the development. The extent of the works were essentially limited to the effective gutting of all internal non-structural elements including floors, ceilings, wall linings, fittings and fixtures. At some stage the garage, which was originally incorporated into the front of the dwelling, was converted to a bedroom and the garage doors replaced with full length windows which were not to Mr Murcutt's design. The applicants purchased the property in this state. 5. In September 2014 the applicants lodged development application 433/2014/1 seeking to demolish the dwelling and construct a new part one, part two storey dwelling with basement level parking at the rear and incorporating wheelchair access to all levels. In March 2015 a report was tabled to council's Development Control Committee with a staff recommendation for conditional approval. In April 2015 a meeting of the Full Council determined to refuse the development application. The principal reasons for refusal are listed as: demolition of a contributory item where inadequate evidence has been provide to justify its demolition; and, non-compliance with a number of planning controls including floor space ratio, setbacks and site coverage. 6. The applicants appeal to the Court under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) for orders granting development consent.