Land and Environment Court New South Wales Medium Neutral Citation: Klettenberg v Woollahra Municipal Council [2016] NSWLEC 1336 Hearing dates: 12 August, 2016 Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. 407/2015/01 for the demolition of an existing carport and construction of a new garage with loft structure above and removal of an existing rear balcony and its replacement with a new window and timber deck in the rear courtyard, at 31 Glenmore Road, Paddington, is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: rear garage and loft structure in a heritage conservation area; resident objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Julien Klettenberg (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: Mr A. Whealy (Applicant) Ms J. Hewitt (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/163257 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 407/2015/01 for the demolition of an existing carport and construction of a new garage with loft structure above and removal of an existing rear balcony and its replacement with a new window and timber deck in the rear courtyard (the proposal) at 31 Glenmore Road, Paddington (the site) by Woollahra Council (the Council). 2. The appeal was subject to mandatory conciliation on 30 June 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). 3. Although agreement was reached during the conciliation conference on the basis of amendments made to the proposal by the applicant, the respondent did not have instructions to enter into an agreement. The amended proposal was renotified to the resident objectors prior to the hearing and the conciliation conference was terminated at the commencement of the hearing on site on 12 August 2016, pursuant to s 34(4) of the LEC Act. Leave was granted by the Court for the applicant to rely on the amended proposal (exhibit A). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. The parties agreed that the amendments were minor in the context of s 97B of the EPA Act. 4. Ms Hewitt submits that the Council is satisfied that the amendments made to the proposal address the contentions raised in the Statement of Facts and Contentions (exhibit 1) and the Council does not press any of the contentions in the hearing. Issues 1. The Council's contentions in relation to the original proposal can be summarised as: * The proposal does not comply with the relevant planning controls for lofts; * The roof form of the proposal is inappropriate with regard to materials and design; * The proposal will have an adverse impact on the visual and acoustic privacy of neighbouring properties; * The proposal will have an adverse impact on the heritage significance of the Paddington Heritage Conservation Area. 1. The proposal was amended on the southern side to increase the wall elevation to taper to a height of 700mm at the south-western corner, above the floor level of the loft, and reduce the area of translucent material within the roof plane on the southern side. The site and its context 1. The site is on the eastern side of Glenmore Road, to the north of the intersection of Glenmore Road and Mary Place. The site has rear access from Mary Place. 2. The site has a 4m rear boundary to Mary Place and an area of 145sqm. 3. The site contains a two and three storey Victorian terrace house. 4. Mary Place is a narrow laneway with a range of buildings and structures fronting the laneway, including rear garages and lofts, garages, carports and fences, as well as two storey traditional and contemporary dwellings. Planning framework 1. The site is zoned R2 pursuant to Woollahra Local Environment Plan 2014 (LEP 2014) and the objectives of the R2 zone are as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 1. The site is within the Paddington Heritage Conservation Area (Heritage Map Sheet 001_HER LEP 2014) (Paddington HCA). The objectives of cl 5.10 of LEP 2014, 'Heritage Conservation' at sub-cl (1), are to conserve the environmental heritage of Woollahra and the heritage significance of heritage conservation areas, including associated fabric, setting and views. The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the area, at sub-cl (4). 2. The dictionary of LEP 2014 includes the following definition: 'ground level (existing) means the existing level of a site at any point' 1. Chapter C1 of Woollahra Development Control Plan 2015 (DCP 2015) provides the objectives and controls for the Paddington HCA. The objectives of Chapter C1 are as follows: O1 To facilitate the implementation of the objectives and provisions relating to heritage conservation contained in Woollahra LEP 2014. O2 To acknowledge and conserve the unique National heritage significance of Paddington. O3 To conserve the significant types of buildings within the Paddington Heritage Conservation Area. O4 To provide guidelines and controls which seek to protect the significant character of Paddington and which encourage contemporary design which responds appropriately to that character. O5 To encourage and promote public awareness, appreciation and knowledge of heritage conservation. O6 To enhance amenity and heritage values within Paddington. O7 To ensure that development is consistent with the heritage significance of the Paddington Heritage Conservation Area. 1. C1.4.4 includes relevant objectives for roof forms within the Paddington HCA, as follows: O1 To retain and conserve the character of the original roofscape of Paddington. O2 To restore or reconstruct missing roof elements. O3 To ensure that contemporary roof forms are consistent with the historic roofscape character of Paddington. 1. C1.5.1 includes a relevant objective for dormers and skylights, which is to minimise the impact of dormers and skylights on the form, appearance and fabric of the principal roof form. The relevant controls for skylights require skylights to be of a low profile and flush with the roof surface, with simple and unobtrusive detailing and be non-reflective; not to exceed an area of 1.5sqm; and not to incorporate more than 25% transparent material in a rear roof plane. 2. C1.5.7 includes the following relevant objectives and controls for lofts over garages and studios: O1 To ensure that loft structures over garages or studios are sympathetic in their location, massing, form and scale to the traditional rear elevations, yards, and laneways. O2 To ensure that loft structures over garages or studios do not detract from the significance of unaltered groups of buildings. O6 To minimise the visual impact of loft structures when viewed from public areas and private land. C1 Loft structures may be permitted where: a) the site dimensions are a minimum of 30m long and 5.24m wide and where the structure will not adversely impact on the traditional character of the rear elevations, yards, and laneways; e) habitable room windows within the loft with a direct sightline to the habitable room windows in the existing building on the site and neighbouring buildings have a separation distance of at least 9m; g) the loft and garage (or studio) structure is a maximum of 4.34m wide; h) the roof structure is gable ended to the laneway, with a maximum ridge height of 5.5m and maximum wall height of 3.9m (on or adjacent to a side boundary); i) windows are located only in the centre of gable ends and must be either: a single double hung sash window, or inward opening window of traditional proportions; 1. C1.5.8 includes the following relevant objective and control in relation to materials: O1 To retain and conserve traditional materials, finishes and details. C4 New materials, finishes, textures and details on the principal building form and elevations visible from a public space, must be traditional and appropriate to the architectural style of the building. Intrusive materials are not permitted. Table 7 below sets out traditional external materials found within Paddington and those materials permissible for new development, including infill development and alterations and additions. Table 7: New roofs to existing buildings – replacement and additions - Galvanised corrugated steel with associated galvanized gutter details and fixings. - Pre-painted corrugated steel in light to mid grey tones, similar in appearance to traditional corrugated iron. - Traditional roof materials as outlined above. Public submissions 1. At the commencement of the hearing on-site, three objectors gave evidence raising their concerns in regard to the amended proposal, which can be summarised as: * The height of the proposal is greater than 5.5m when scaled from the plans; * The eastern window of the loft overlooking the laneway will compromise the visual privacy of the dwelling on the opposite side of Mary Place at 14 Prospect Street; * The bulk and scale of the amended proposal is beyond that permitted by DCP 2015; * Mary Place has dwellings fronting onto it as well as being the rear access to dwellings fronting Glenmore Road and Prospect Street; * The amended proposal will have a detrimental impact on the heritage significance of the Paddington HCA and streetscape of Mary Place; * The proposal will set a precedent for other garages and lofts in the Mary Place. 1. The southern adjoining neighbour supports the proposal. Expert evidence 1. A joint report was prepared by the heritage experts, Mr John Oultram for the applicant and Mr James Phillips for the Council (exhibit 2). Mr Andrew Darroch, planning expert, provided a response to contentions report on behalf of the applicant (exhibit C). Consideration 1. The heritage experts agreed on the following in relation to the amended proposal and I accept their agreement: * The site is sufficiently wide to accommodate a loft; * The screening is adequate; * The selection of the translucent material to a profile matching the metal roofing is acceptable and the selection of materials is appropriate and acceptable in terms of colour and profile. The translucent material is not a skylight; * The extent of glazing in the western elevation is acceptable; * The amended proposal to raise the eave to 700mm above finished floor level (FFL) is appropriate; * The structure of the loft will not have a detrimental visual impact on Mary Place; * The proposal is appropriate and does not have a detrimental impact on the heritage significance of the Paddington HCA. 1. According to Mr Darroch: * The ridge of the loft is a maximum of 5.5m above existing ground level, as defined by LEP 2014. * The eastern window in the loft is a secondary aspect, as the primary orientation of the room within the loft is towards the courtyard of the site. The window is included to be consistent with the loft controls in DCP 2015; * There is more than 11m between the eastern window in the loft and the rear bedroom windows of 14 Prospect St; * There is 5.2m between the eastern window and the dormer window at the rear of 16 Prospect St and the two windows are offset; * The proposal provides a satisfactory level of visual and acoustic privacy for the proposal and neighbouring dwellings. 1. The DCP 2015 controls for lofts over garages do not preclude a loft structure on a site less than 5.24m wide, as the control states, 'Loft structures may be permitted where the site dimensions are a minimum of … 5.24m wide' 2. The proposed garage and loft structure designed by Aileen Sage Architects is a thoughtful and bespoke response to the opportunities and constraints of the site, including its heritage context. I accept the agreement of the heritage experts that the proposal will not detrimentally impact on the heritage significance of Mary Place and the greater context of the Paddington HCA. 3. I am satisfied that the design of the loft structure is sympathetic in its massing, form and scale to Mary Place. I accept Mr Darroch's evidence that the small eastern window in the rear elevation of the loft will not compromise the visual or acoustic privacy of the neighbouring dwellings and that the primary orientation of the room within the loft is west towards the courtyard of the site. Conclusion 1. In considering the amended proposal, the agreement of the experts and the agreed conditions of consent, and the concerns of the objectors, I am satisfied that it is lawful and appropriate to grant development consent to the proposal. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 407/2015/01 for the demolition of an existing carport and construction of a new garage with loft structure above and removal of an existing rear balcony and its replacement with a new window and timber deck in the rear courtyard, at 31 Glenmore Road, Paddington, is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1 and A, are returned. ____________ Susan O'Neill Commissioner of the Court 163257.16 - Annexure A (252 KB, pdf) ********** 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: 16 August 2016