Chris Kokkinis trading as Ergo Architecture and Interiors v Woollahra Municipal Council

CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

APPLICANT Mr P J McEwen, SC Instructed by: Mr S Freidman, solicitor Of: Harris Freidman Hyde Page LEGAL REPRESENTATIVES: RESPONDENT Ms M Hawley, solicitor SOLICITORS Lindsay Taylor Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11287 of 2005 Chris Kokkinis T/as Ergo Architecture & Interiors -v- Woollahra Municipal Council

JUDGMENT 1 This is a Class 1 appeal No. 11287 of 2005 between Chris Kokkinis trading as Ergo Architecture & Interiors v Woollahra Municipal Council in regard to the deemed refusal of an application for alterations and additions to No. 54 Fletcher Street, Woollahra.

The proposal 2 Development application No. 412/2005 was submitted for alterations and additions to an existing residence consisting of: the refurbishment of an existing timber cottage, a new basement providing off street car parking for two vehicles and a new three storey addition to the rear of the existing dwelling and a new swimming pool. 3 The means of creating the basement car park is proposed by jacking the timber cottage up in the air to excavate the front yard, and beneath the cottage, and the proposed rear extension, and then constructing the masonry and concrete basement, and lowering the timber cottage onto the top of the basement. It would be about 600 mm higher than it currently sits. A picket front fence and gates and a driveway would replace the existing stone front fence and elevated front lawn.

The site and locality 4 The site is located within a Residential 2(b) zone and in a heritage conservation area, as defined by Woollahra Local Environmental Plan 1995. The subject site is rectangular in shape, with an area of 191.7 sq m. It is located on the southern side of Fletcher Street, Woollahra, diagonally opposite the Small Street intersection. 5 On the site is a single storey timber cottage that forms the eastern one of a pair of cottages Nos. 54 and 56 Fletcher Street. The cottages have been identified as contributory items and described as Victorian houses under the Woollahra Heritage Conservation Area Development Control Plan 2003. The subject site's ground level is approximately 1.2 m above footpath level and rises mildly to its rear southern boundary. A sandstone wall presents to Fletcher Street. 6 Immediately adjoining to the east of the site is a three storey terrace house that forms one of a pair of terrace houses with basement parking accessed from Fletcher Street. Immediately to the west of the pair are another pair of terraces. Surrounding developments in Fletcher Street are predominantly dwelling houses, varying between one and three storeys in height on narrow, elongated shape allotments with a north-south subdivision pattern with mild ground slopes above or below footpath level.

Public submissions 7 The application was advertised and adjoining property owners were notified of the development in accordance with the Council's Advertising and Notifications Development Control Plan. Submissions were received from Jean Kevans of Unit 6/67 Edgecliff Road, Woollahra, and Andrew Kevans of Unit 8/67 Edgecliff Road, Woollahra. This is a four storey walk up apartment building immediately behind the subject site. The adjoining property owners raised the following issues: o the height of the building is excessive and out of keeping with adjoining development, o the loss of light, o loss of district views and o loss of privacy.

The issues 8 The issues in the case were: 1) whether the proposed engineering works extend onto adjoining properties and therefore whether consent can be granted to the development application, the subject of the appeal in the absence of written consent to the lodgement of the development application from the owners of the adjoining properties. 2) whether the proposed development has a detrimental effect on the significance of the heritage conservation area in which it is located. 3) whether the bulk and scale of the proposed addition would dominate the existing cottage which is a significant item and would be detrimental to its setting. Particulars : The proposal does not comply with the Woollahra Heritage Conservation Area Development Control Plan 2003 , in particular: o Part 3.2.1 Objectives O1 and O2 and Control C1, o Part 3.2.3 Objective O2 and Control C7 and C9, o Part 3.3.1 Objective O1 and Control C2 and C5 and o Part 3.4.4 Control C7. The proposed floor space ratio of 1.21:1 exceeds the control of 0.94:1.

4. whether the garage and its access, being located beneath the principal dwelling would be detrimental to the setting of the existing dwelling and would be a dominant element in the streetscape.

Particulars: The proposal does not comply with the following provisions of the Development Control Plan: o Part 3.4.9 Objective O1 and Control C1 and C4. 5) whether the setback of the addition from the rear boundary would be inconsistent with the predominant rear setback of development in the locality and would be detrimental to the amenity of No. 52 Fletcher Street with regard to sunlight access to its rear private open space. Particulars : The proposal does not comply with the following provisions of the Development Control Plan: o Part 3.4.3 Objective O1, O3 and O9 and o Part 3.4.4 Control C8;

6. whether the existing sandstone fence is a contributory and characteristic element and whether its removal would be detrimental to the conservation area? Particulars : The proposal does not comply with the following provisions of the Development Control Plan: o Part 3.2.6 Objective O1 and O2 and Control C2 and C3.

7. whether the proposal would result in excessive excavation of the site that would be detrimental to the amenity of adjoining property and the public with regard to noise, dust, vibration and vehicle and pedestrian movement? 8) whether the proposed excavation would compromise the setting of the existing cottage? Particulars : The proposal does not comply with the following provisions of the Development Control Plan: o Part 3.2.3 Objectives O1 and O2 and Control C6 and o Part 3.4.3 Control C9. 9 The objectors did not give oral evidence. The experts gave oral evidence during the site view but were not required in Court. Their reports were tendered. 10 For the respondent, reports and documents of council staff: o Miss L Thom, heritage officer, o Mr M Tompkins, engineer, o Mr J Lukas, acting team leader.

11 For the applicant, reports and documents from: o Mr G Brooks, heritage architect, o Mr L Fletcher, town planner, o Mr B Witt, engineer, o Mr C Turner, husband of the site owner and o Mr R Davies, termite inspector.

12 The parties had agreed that the Court should appoint joint experts, Mr G Shiels, town planner and Mr R Staas, heritage architect and their reports were also tendered. Joint reports of experts with the same expertise were also tendered after their conferencing.

The evidence and conclusions 13 The existing house is a single storey timber house built around 1904. The heritage experts say it is a worker's cottage. It is a mirror image reverse of No. 56, the other matching cottage beside it; No. 56 being at a slightly lower level due to the slope of the street. 14 The subject house at No. 54 has had its rear section demolished as commencement of an earlier approval of a rear extension. That approval was not tendered. However, the Court-appointed heritage expert, Mr Staas, had seen it and expressed the view it was a good design on heritage grounds that retained the essential parts of the cottage and allowed an extension that gave up to date residential accommodation. Due to the rise in the site from the street, the site has been excavated from the cottage to the back of the site, and this level area would have previously housed the demolished rear section of the house. 15 The subject cottage and No. 56 are identified as contributory items under the applicable local environmental plan, and as significant items under the applicable development control plan. It was explained to me that, under the local environmental plan, heritage items and their settings are the most important things to conserve. 16 In the development control plan, heritage items and contributory items are grouped together under another term called "significant items". One reason for this is the role contributory items play in maintaining a streetscape such as might occur in Paddington where consistency of design style is an important part of the character of a conservation area and its streetscape. 17 Another reason for classifying contributory items as significant items is that individually or as a group they illustrate a period of evolution in a conservation area and a design style and a socio-economic group. In this case, the heritage experts agree the two timber cottages are also very rare. Both heritage experts agree these are amongst the few left in Woollahra. 18 The point of departure between the heritage experts, Mr Staas and Mr Brooks is, in my opinion, the following: Mr Staas gives the rarity of the cottages a priority and the fact that they were built in a period when such houses did not have a garage or a car associated with it. The relationship of the cottage to the street is important in displaying its fundamental characteristic of a stone front fence retaining wall. This creates a raised front lawn level with the top of the stone wall, and thus the appearance of a podium on which the cottage sits. 19 Mr Staas gives weight to the grouping of Nos. 54 and 56 because that adds to their importance as set out in the development control plan. 20 A further observation from the view of Fletcher Street and the site is that the cottages are quite noticeable amongst the variety of two and three storey buildings in the street because of their single storey nature, their being a group and their pigeon pair alikeness and their quaint architecture, which the experts agreed was probably Victorian Edwardian rather than just the Victorian period. 21 Mr Brooks' position takes the variety and lack of consistency of the many design styles and periods in Fletcher Street as a reason to say the pairing of Nos. 54 and 56 will be retained as far as lay persons are concerned. The raising of the cottage by 600 mm will not cause a significant difference. The loss of the stone front wall and the podium effect, currently existing, will hardly be noticed with the basement garage being excavated below the footpath level and a new picket fence and gates erected on the front boundary. 22 The applicant submitted, in any case, the stone wall was permitted in the previous consent on the site to be cement rendered and so the appearance of the stone wall would be lost. Mr Brooks noted that many of the older dwellings in Fletcher Street had been retro-fitted with garages under the ground floor facing the street and all newer dwellings had garages under. That being the case, a garage under the cottage would not be out of place in the streetscape, and he saw the adaptation of the cottage to current day needs as the Burra Charter objective of managing change in conservation areas, so that older buildings could remain into the future. 23 In seeing the site and the street and hearing these two points of view, I could observe the many garages beneath dwellings in this part of Fletcher Street. Other parts of the street had rear lane access but the section in which Nos. 54 and 56 are located did not. Indeed, it was part of their noticeable character in the streetscape that they did not have garages like most of their neighbours. If you like, their contributory role became more obvious to the casual observer because of that fact. 24 The applicant put that other factors must be put into the balance before coming to a conclusion in this appeal. It was stated several times during the hearing that: 1) the partially demolished state of the cottage left it exposed to the elements and it is deteriorating;

2. unlike designated heritage items, the Council and the State have no power to direct the protection or restoration of a contributory item such as the cottage at No. 54;

3. the termite inspection revealed borer, wood rot and fungus attack that would mean substantial parts of the cottage needed repair or rebuilding and this damage would accelerate given more time passing; and

4. the only way to preserve what is left of the cottage and its contributory role is to incorporate it into a re-development that provides acceptable, up to date residential facilities. 25 Mr Turner gave an affidavit saying, in summary, the property had cost about $900,000, and after a previous refusal by Justice Bignold it was put on the market and drew no interest and was currently worth around $700,000. He and his wife wanted to move in from Cronulla to be closer to work and school. They had four daughters and four cars. The current design has the sorts of facilities they need for up to date family accommodation on the site. Parking 4 cars on the street is not secure or practical he said. In looking at the plans I could see the basement garage proposed at 16 m effective depth and 3.6 to 4 m wide is big enough for three cars and perhaps even four, if small cars are used. 26 The applicant also showed a video of parents dropping off and picking up school children from the nearby school in Fletcher Street. As is the custom these days, parents do this by car and the video showed cars queued from the school up past the site on Fletcher Street on this twice daily ritual. 27 I can appreciate the dilemma the site has posed for the owners, even though I am told they bought the site knowing its restrictions. I can understand the pragmatic approach of the applicant's advocate in putting, in effect, if an approval is not granted the remains of the existing cottage may deteriorate to such an extent it will be lost, and a compromise to retain its contributory role in a modified form is a reasonable outcome. 28 In dealing with this I am bound to consider the council's statutes and controls, and the issues in the appeal, and whether the merits of this particular design are good enough for an approval. 29 In regard to the engineering concerns of underpinning adjoining buildings due to the excavation proposed, the parties advised it can be resolved by conditions. I look no further to that. 30 In regard to other matters, Mr Shiels notes that the three storey high rear addition will take what is left of the only mid-winter sun obtained in the private open space of No. 52, the eastern neighbour of the subject site. The council controls require where a private open space gets less than two hours of sun mid-winter to less than 50 per cent of the area of the private open space or 35 sq m, whichever is smaller, no further solar loss is permitted. This applies to No. 52. 31 The applicant showed on site a huge camphor laurel tree that overhangs No. 52's private open space, and fly screen material hung to collect leaves, and said that the private open space got no sun anyway. 32 The shadow diagrams do show sun, and in mid-winter in the afternoon the sun would probably be low enough in the sky to get under the tree canopy. Given the tree shade at other times, that little sun is more valuable. The plan of No. 52 handed up during the hearing shows the living room of that dwelling faces the private open space, so it is an important area. 33 Mr Shiels also points to provisions that the floor space ratio of 0.94:1 is exceeded. The experts agreed that the actual floor space ratio is between 1.12:1 and 1.17:1. 34 Mr Shiels says the bulk of the three storey addition will dominate the one storey cottage. This is a small site and the bulk and scale would be contrary to the Woollahra Heritage Conservation Development Control Plan cl 3.2.1, 3.2.3, 3.3.1 and 3.4.4. 35 The placing of the garage beneath a heritage or a contributory item is not permitted under cl 3.4.3 and 3.4.9. The extent of excavation is also not permitted. 36 The rear setback of the three storey extension is less than the setback of both adjoining neighbours and this feature increases the shadowing of No. 52's back yard, and will create visual bulk in the rear yards of both its neighbours. 37 The removal of the sandstone fence and the raised lawn, is a matter for Mr Staas' opinion, and he was aware of the previous consent allowing the stone wall to be rendered. He considered that is preferable to the removal of the wall and the creation of the garage; both of which he considered entirely unsympathetic to the existing character of the building. 38 The opinion of Mr Brooks that the garage would hardly be noticed is not credible in Mr Staas' opinion. The applicant produced photomontages in Exhibit B to illustrate Mr Brooks' opinion. In looking at them, the difference between the existing and the proposed is very obvious, in my opinion, including the three storey addition at the rear. 39 My decision really comes down to whether a contributory item is such that it warrants retention. I am guided by the development control plan that lists them as significant items to be dealt with, in many ways, the same as heritage items. The respondent's advocate pressed that the development control plan has been widely exhibited and consulted with the community before its adoption and vigorously defended since. Further, that with the precedent case of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, the development control plan must be given determinative weight. 40 I have reached the conclusion that such must apply in this case despite the pragmatic and undesirable alternative put to me by the applicant's advocate. The proposal has so many non-compliances it is not suitable for approval, although, as the respondent submitted, other alternatives may exist.

Orders 41 Therefore, the orders of the Court are: 1) The appeal is dismissed.

2. The exhibits are returned to the parties, except Exhibits A, B, 4, 10 and 12. ___________________ K Hoffman Commissioner of the Court As/rjs

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