Land and Environment Court New South Wales

• Medium Neutral Citation: Buttery v Woollahra Council [2014] NSWLEC 1219
• Hearing dates: 15 September 2014
• Decision date: 28 October 2014
• Jurisdiction: Class 1
• Before: O'Neill C

Decision

1. The appeal is upheld.

2. Development Application No. 150/2014/1 for alterations and additions to an existing dwelling at 39 Holdsworth Street, Woollahra, is approved, subject to the conditions of consent at Annexure 'A'.

3. The exhibits, other than exhibit 2, are returned.

• Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a dwelling identified as being contributory to the Woollahra heritage conservation area; off street parking in the front setback.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
• Cases Cited: Osborne v Woollahra Municipal Council [2013] NSWLEC 1264; Segal v Waverley (1995) 64 NSWLR 177; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
• Category: Principal judgment
• Parties: Mr Gary Buttery (Applicant); Woollahra Municipal Council (Respondent)
• Representation: Mr G Green (Applicant); Mr A Hudson (Respondent); Pikes & Verekers Lawyers (Applicant); Wiltshire Webb Staunton Beattie Lawyers (Respondent)
• File Number(s): 10483 of 2014

Judgment

1 COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 150/2014/1 for alterations and additions to an existing dwelling (the proposal) at 39 Holdsworth Street, Woollahra (the site) by Woollahra Council (the Council).

2 The appeal was subject to mandatory conciliation on 15 September 2014, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

Issues

3 The Council's contentions in the matter can be summarised as:

• the proposal will result in adverse impacts on the heritage conservation area;
• the provision of one on-site vehicle parking space forward of the front building line has an adverse impact on the heritage significance of the existing contributory cottage and detracts from the streetscape of Holdsworth Street;
• the bulk and scale of the rear addition is excessive and results in adverse visual impacts on the existing single storey contributory cottage and the streetscape; and
• the proposal has an adverse impact on the visual privacy of adjoining properties.

4 The proposal was amended prior to the hearing, by deleting the proposed roof terrace over part of the single storey portion of the rear addition and this amendment effectively dealt with Council's contention regarding any adverse impact on the visual privacy of adjoining properties and as a consequence, this contention was not pressed by Council in the hearing.

The site and its context

5 The site is on the eastern side of Holdsworth Street, Woollahra, between Weldon Lane to the south and Morrell Street to the north. The site has an area of 247.5sqm.

6 The existing single storey cottage is free standing, with two-storey, Victorian terrace houses on either side. The existing cottage is set further back from the street boundary when compared to the adjoining dwellings. There is a three storey residential flat building to the rear of the site.

7 The existing cottage consists of a gable roof, with its ridge parallel to the street boundary and a single storey rear wing addition.

Background and the proposal

8 The proposal is to demolish the rear wing addition of the cottage and the existing dormer window in the front roof plane and construct a two storey rear addition under a skillion roof falling towards the ridge of the cottage roof, with a single storey rear wing wrapping around a northern courtyard, with landscaping over, and two new dormer windows in the front roof plane.

9 The proposal is to provide off street parking for one car on the southern side of the existing front setback of the cottage, with a new vehicle cross over on the street frontage, which requires two street trees to be removed.

Planning Framework

10 The site is zoned 2(a) pursuant to Woollahra Local Environment Plan 1995 (LEP 1995) and the proposal is permissible with consent. The relevant aims and objectives of LEP 1995, at cl 2(1)(g), is to conserve the environmental heritage of Woollahra. In relation to traffic and transport, the relevant aims and objectives, at cl 2(2)(d)(i) and (iv) are to encourage the development of a balanced transport system, including the provision of safe and convenient facilities and to improve the provision of car parking and reduce conflict between resident and visitor demands for car parking spaces in residential areas.

11 The relevant aims and objectives of LEP 1995 in relation to heritage conservation, at cl 2(2)(g)(ii) and (iii) are to ensure that new development is undertaken in a manner sympathetic to and not detracting from the heritage significance of heritage conservation areas and to encourage the restoration and reconstruction of buildings that contribute to character of heritage conservation areas.

12 The relevant objective of the 2(a) zone, at cl 3(a) of LEP 1995, is to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling-houses.

13 The Court, standing in the shoes of the Council, must be of the opinion that the proposal is consistent with the objectives of the plan and zone objectives of LEP 1995 in order to grant consent, at cl 8(5) of LEP 1995 and must take into consideration the extent to which the proposal would affect the heritage significance of the heritage conservation area, at cl 28(2) of LEP 1995.

14 The site is identified as a 'Victorian house' which is contributory to the Woollahra Heritage Conservation Area (Woollahra HCA) at Part 5, Schedule of significant items, Woollahra Heritage Conservation Area Development Control Plan 2003 (DCP 2003).

15 The relevant objectives of DCP 2003, at cl 1.6(b) and (d), are to conserve the heritage significance of Woollahra HCA and to provide controls to protect the identified heritage values and significant character of Woollahra HCA and to encourage contemporary design that responds appropriately to that character. Contemporary design for additions to significant items is encouraged, at cl 2.5 of DCP 2003.

16 The site is located within the West Woollahra precinct, which is described at cl 2.1 of DCP 2003 as being characterised by small lots and a variety of generally small-scale cottage and terrace houses.

17 The desired future character of Woollahra HCA, at cl 2.3 of DCP 2003 includes to retain the distinctive building types characteristic of the area and its precincts.

18 Part 3 of DCP 2003 includes an explanation which states that it is not just change to the street front elevations of significant buildings that is important, but alterations and addition at the rear of properties are also often visible from the public domain and can alter their proportion, scale and cohesion of a group of buildings.

19 The significant characteristics of West Woollahra precinct, at cl 3.1.2 of DCP 2003, include individual single storey houses, front fences and their bases and garages and carports being located in rear lanes rather than along street frontage, as the few garages facing the primary street are generally intrusive. The controls for the West Woollahra precinct include, at C1, that two storey additions to single storey buildings with a steeply pitched roof may occur at the rear, provided the addition is separated from the principal form by a light weight single-storey link and that the addition is designed to respect and enable interpretation of the form of the original dwelling.

20 Clause 3.2 includes the following explanation:

Significant items are those features that contribute to and exemplify the heritage significance of the HCA and are identified as heritage items at contributory items... When a property has been identified as a significant item, the listing includes all original fences, landscaping, trees, gardens and outbuildings as well as any building. This plan therefore includes objectives and controls that apply to these important elements of the buildings' settings.

21 The relevant objective for the conservation of significant items, at cl 3.2.1 O1 is to ensure those significant items, outbuildings and their curtilages and settings are retained.

22 The objectives for alterations and additions to significant items, at cl 3.2.3 of DCP 2003, include at O1 and O2, to retain the original built form and to ensure that additions are consistent with the style, form, massing, details, materials and finishes of the item. The controls include at C1 that sympathetic contemporary design may be permitted to replace fabric which is intrusive or of low significance and if it is consistent with the character of the site and streetscape and at C7 that the bulk, height and scale of additions must not compromise or dominate the principal building form.

23 The objectives and controls for single storey houses at cl 3.3.1 of DCP 2003 include at O1 to preserve the single storey presentation to the street; at C1 that upper floor additions to the principal building form will only be permitted where they are contained within the roof form, or with the addition of rear dormers; at C2 that rear additions should not dominate the principal building form; at C3 that the linking structure should be below the eaves line; and at C5 that double-storey additions at the rear are not to be visually disruptive.

24 The explanation at cl 3.4.3, building location and built form, states that it is acceptable for additions, which are not visible from the street, to be designed in a contemporary style.

25 The objectives for parking at cl 3.4.9 of DCP 2003 include at O2 to ensure that residential buildings, rather than vehicle access, remain the dominant elements in the streetscape and at O5 to allow safe and convenient vehicle access and to minimise vehicle and pedestrian conflict.

26 The controls for parking at cl 3.4.9 of DCP 2003 include at C1 that the provision of on-site parking may not be required by Council or permitted where it would have a detrimental impact on the character of a streetscape; at C2 that all parking is to be provided behind the front building alignment and at C3 that no additional vehicle crossovers will be permitted off street frontages.

27 The relevant aim of the Parking Development Control Plan 2011 (DCP 2011), at cl 1.4, is to provide car parking and vehicle servicing requirements for development in the municipality. In considering a development application, at cl 1.8, Council will take into account, among other things, the characteristics of the streetscape and the site, particularly the subdivision pattern, topography, street design and width, street tree planting and street parking. The parking provision, at cl 2.2, must be consistent with the precinct's desired future character objectives for the location of parking and at cl 2.2.3, all car parking structures are to be provided behind the building line and limited to a width of no greater than 40% of the site frontage width (where the frontage less than 20m).

Expert evidence

28 Expert evidence was provided by Mr Robert Staas (heritage) and Ms Alison McCabe (planning) on behalf of the applicant and by Mr Paul Fletcher (heritage) and Mr Simon Taylor (planning) on behalf of the Council.

29 Expert traffic evidence was provided by Mr John Coady on behalf of the applicant. The Council submits that the contention regarding the detrimental impact of the off-street parking on the heritage significance of the Woollahra HCA is pressed, however, if the Court is minded to approve the off-street parking, Council is otherwise satisfied with Mr Coady's report (exhibit B) and no objection is raised on the grounds of safe and efficient manoeuvrability of vehicles to and from the site.

The proposed alterations and additions to the cottage

Evidence

30 The heritage experts agreed on the following in relation to the proposed alterations and additions to the Victorian cottage (exhibit 3, p 4):

• the existing rear wing addition is unsympathetic;
• the location of the two storey component of the proposal to the rear of the ridge of the existing cottage and within the principal building form is appropriate, as is positioned in response to the form of the neighbouring dwellings;
• that while not strictly meeting the relevant controls, the proposal meet the objectives of the controls and retains the single storey presentation of the existing cottage to the street, with only minor sightlines of the two storey form of the proposal possible at the rear, visible down the side of the cottage;
• the proposed dormer windows in the front roof plane are a sympathetic addition to the dwelling and streetscape, as they match the proportions of the existing dormer window to be removed; and
• the use of copper cladding is appropriate as it will differentiate the new work from the existing fabric of the cottage.

31 In Mr Fletcher's opinion, the proposal maintains the look of the existing cottage from the street and he is satisfied that the proposed alterations and additions to the rear of the cottage are acceptable in terms of their impact on the contribution the Victorian cottage makes to the heritage significance of the Woollahra HCA. Mr Staas concurs with this view.

32 Mr Taylor is of the view that the proposal, with a skillion roof which rises towards the rear of the site and is higher at its eastern extent that the existing ridge of the cottage, should be lowered to make it a less dominant and excessive element in relation to the proportions of the Victorian cottage.

33 According to Ms McCabe, the value of the cottage is primarily its contribution to the streetscape and this is maintained by the proposal. In her assessment, the rear addition does not result in any amenity impacts on neighbouring properties, is barely visible from the public domain and will result in a modest and considered addition to a small house.

Findings

34 I accept the agreement of the heritage experts that the proposed one and two storey addition to the rear of the contributory cottage is appropriate and acceptable in terms of its impact on the contribution made by the existing Victorian cottage to the heritage significance of the Woollahra HCA.

35 I accept Ms McCabe's evidence that the value of the cottage is primarily its contribution to the streetscape; that the proposal does not result in any amenity impacts on neighbouring properties; and that there is nothing to be gained from further constraining the envelope of the addition.

36 The proposal maintains the overall form of the cottage, by retaining the gables on the side elevations and insetting the two storey addition at the rear, so that the pitched roof of the original cottage is apparent when glimpsed along the side elevations from Holdsworth Street, which evokes the three dimensional original form of the cottage. The proposal is suitably contemporary and a well designed and a thoughtful response to the constraints of this site and achieves a sympathetic addition to the cottage, with appropriate massing, scale, proportions, materials and details, which is not visually disruptive to the Woollahra HCA. Consequently, I am satisfied that the alterations and additions to the contributory Victorian cottage component of the proposal should be granted consent.

The proposed on-site parking

Evidence

37 According to Mr Taylor, Council does not oppose the removal of the two street trees required to be removed to make way for the driveway crossover.

38 The heritage experts disagreed on the impact of the on-site vehicle parking component of the proposal on the heritage significance of the Woollahra HCA.

39 According to Mr Staas, the proposed on-site vehicle parking space forward of the building line does not result in any adverse impact on the Woollahra HCA, as there will be substantially no difference to the existing situation and cars parked along Holdsworth Street already impact one's appreciation of the streetscape (exhibit 3, pars 62-3). Mr Staas added in oral evidence that the removal of an on-street vehicle parking space will enhance the view of the Victorian cottage from the public domain and that the on-site vehicle parking will be a neutral component in the streetscape elevation of the Victorian cottage.

40 According to Mr Fletcher, the proposed on-site vehicle parking space forward of the building line will have a negative impact on the setting of the Victorian cottage and will add to the cumulative negative impact of on-site vehicle parking forward of the building line within the immediate area (exhibit 3, par 66).

41 The planning experts agreed that the proposal complies with the soft landscaping requirements of DCP 2003 and the on-site vehicle parking is not being provided at the expense of soft landscaping and usable open space.

42 Ms McCabe considers that the on-site vehicle parking space will be screened by the fence and gate structure and the proposal includes an automatically closing gate with landscaping around the paved parking space.

43 According to Mr Taylor, all existing on-site vehicle parking spaces/structures provided forward of the building line within Holdsworth Street were approved by Council prior to the commencement of the Woollahra HCA DCP on 3 April, 2003. Properties with parking forward of the building line within the vicinity of site are numbers 15, 53, 55, 81-3, 87, 89, 91, 93-5, 97, 12A and 14 and seven of these properties are identified as contributory to the Woollahra HCA (exhibit 3, pp 7-8). 53 Holdsworth Street is the closest example of a contributory item with parking forward of the building line. It is Mr Taylor's evidence that Council has consistently opposed the establishment of parking forward of a 'significant item' within the Woollahra HCA since 2003 (exhibit 3, par 46).

44 In Mr Taylor's view, the proposal for on-site parking is not consistent with the objectives or controls of DCP 2003 and will result in a vehicle being visible in the streetscape, including over and through the proposed timber picket fence and the parked vehicle will be the dominant element in the street elevation of the Victorian cottage, particularly as it is a single storey dwelling.

Submissions

45 Mr Green submits that the Court's decision in Osborne v Woollahra Municipal Council [2013] NSWLEC 1264 (Osborne) is relevant to my consideration of this matter and I should follow the reasoning in the Osborne decision. To this end, the Court, in the company of the parties and their experts, visited the Osborne site at 12 Victoria Ave, Woollahra and viewed the constructed and completed on-site parking and new gate across the driveway, which replaced a portion of the Victorian palisade fence and sandstone base.

46 Mr Green submits that the proposal for on-site parking is much less constrained that it was at 12 Victoria Ave, Woollahra, as the Osborne site could only fit a maximum B35th percentile vehicle, whereas the proposal will fit a B85th percentile vehicle and furthermore, the Osborne site is a heritage item, whereas the site in this matter is identified as contributory to a heritage conservation area and is not a heritage item. Mr Green drew my attention to the finding regarding the public interest in Osborne, at [84], that there is an 'element of the public interest in the provision of [an on-site parking space]' to a 'private property, in an area where there is significant external non-residents demand pressure on the provision of parking spaces... that it is in the interests of residents to permit them to park in or at the vicinity of their residential properties'.

47 The Council submits that the following alternate condition should be added to the conditions of consent (exhibit 4), if the on-site parking is to be deleted from the consent:

The car space forward of the dwelling and the vehicle cross-over is to be deleted. The front fence plinth is to be constructed along the frontage of the property, the fence is limited to a height of 1.5m and the front yard is to be landscaped as soft landscaping (with the exclusion of the pedestrian path).

Findings

48 Relevantly, McClellan CJ set out, in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (Stockland), the principles relevant to a consideration of development control plans, at [87]:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.

A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.

Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

49 It is in this context that I approach the assessment of the proposal against the relevant provisions of Woollahra HCA DCP, because the Woollahra HCA DCP is soundly based and consistently applied.

50 While the Court made an exception to the provisions of Woollahra HCA DCP in Osborne, it is, in my view, sufficiently distinguishable from this matter on the facts, as the Court gave some weight to the precedential effect of parking in the front setback of the adjoining property at 10 Victoria Ave (at [27]). Furthermore, I am not bound by Osborne (Segal v Waverley (1995) 64 NSWLR 177 at [95]).

51 In relation to the applicant's 'public interest' submission, McClennan CJ noted in Stockland at [90], that the public interest 'must extend to any well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area'. Based on this reasoning, the public interest is best served, in my view, by achieving the objectives of the Woollahra HCA DCP, including to protect the identified heritage values and significant character of the Woollahra HCA.

52 I accept and adopt Mr Taylor's evidence that a parked vehicle in the front setback of the cottage will be a dominant element in the street elevation and front setback of the Victorian cottage and Mr Fletcher's evidence that the on-site parking will have a negative impact on the setting of the Victorian cottage.

53 The changes to the setting and curtilage of the existing Victorian cottage required by the on-site parking, including the excavated hard stand, the position of the on-site parking forward of the front building line and abutting the front verandah of the Victorian cottage, the vehicle cross-over on the street frontage, the removal of a front fence and addition of a sliding gate across the driveway at the street boundary, will have a detrimental and unacceptable impact on the contributory Victorian cottage and the identified heritage values and significant character of Holdsworth Street, the West Woollahra precinct and the Woollahra HCA.

54 The on-site parking component of the proposal is contrary to the relevant objectives and controls of cl 3.4.9 of the Woollahra HCA DCP, including O2 to ensure that residential buildings, rather than vehicle access and parking structures, remain the dominant elements in the street scape; C1 to ensure that the parking of a vehicle does not have a detrimental impact on the character of a streetscape or the significance or architectural character of a building on the site; C2 for all parking to be provided behind the front building alignment; and C3 for no additional vehicle crossovers off street frontages.

55 The on-site car parking component of the proposal will not reduce the conflict between resident and visitor demands for car parking spaces in the area, as the provision of the on-site parking space results in the removal of one vehicle parking space in Holdsworth Street.

Conclusion

56 I am satisfied that the alterations and additions to the existing cottage meet the relevant objectives of Woollahra HCA DCP and will achieve a sympathetic and appropriate addition to the contributory cottage, whilst maintaining the existing presentation of the cottage to Holdsworth Street.

57 Ultimately, I am not persuaded that the on-site parking component of the proposal is consistent with the objective of undertaking development in a manner that is sympathetic to and not detracting from the heritage significance of the Woollahra HCA, pursuant to cl 2(2)(g)(ii) of LEP 1995. The on-site parking component of the proposal, forward of the front building line and with a vehicle cross-over on the street frontage, is contrary to the objectives of Woollahra HCA DCP, to protect the identified heritage values and significant character of the Woollahra HCA.

Directions

58 The Court handed down directions on 30 September 2014 requiring the applicant to delete the on-site parking component of the proposal from the plans, as follows:

The applicant is to amend the architectural and landscape plans as follows:

the driveway cross over and hard stand is to be deleted and replaced with soft landscaping at a similar height to the soft landscaping on the northern side of the front setback (excluding the central pedestrian path);

the sandstone plinth below the front fence along the frontage of the property and a fence to a maximum height of RL59.99 (DA-0501) is to be shown; and

a central entry gate is to be shown.

The respondent is to file amended conditions of consent as follows:

Condition A.3 is to be updated to include the revision numbers on the amended plans;

Condition A.5(b) may be amended to remove trees 1 and 2 from the list of trees that can be removed; and

Condition C.6 is to be deleted as it is no longer required.

59 The applicant filed the amended plans in accordance with the Court's directions on 24 October 2014 and the Council filed the amended conditions of consent on 27 October 2014.

Orders

The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 150/2014/1 for alterations and additions to an existing dwelling at 39 Holdsworth Street, Woollahra, is approved, subject to the conditions of consent at Annexure 'A'.

3. The exhibits, other than exhibit 2, are returned.

Susan O'Neill

Commissioner of the Court

Annexure 'A'

 

Decision last updated: 28 October 2014