Engelen Moore P/L v Woollahra MC

Zhang v Canterbury Council [2001] NSWCA 167; CASES CITED: Totem Queens Park P/L v Waverley Council [2004] NSWLEC 712; Architects Marshall v Lake Macquarie Council

APPLICANT Mrs M-L. Taylor, solicitor of Norman Waterhouse

RESPONDENT Mr M. Connell, solicitor of Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10455 of 2005 Engelen Moore Pty Limited v Woollahra Municipal Council

JUDGMENT 1 This is a verbal judgment for an appeal under s 97 of the Environment Planning and Assessment Act against Woollahra Council's refusal of a development application for alterations and additions to the property known as No 35 Ocean Street, Woollahra.

2 By way of background, the Court commenced these proceedings as an on-site hearing and further to that on site hearing there has been the submission of details in terms of materials, finishes and colours and a response by the council. The applicant has agreed to an amendment to the colours and all the other conditions that the council has proposed in terms of the without prejudice conditions.

3 A statement of basic facts describes the proposal to undertake alterations and additions to the existing dwelling by: + The ground floor level. + Relocation of stairs to first floor level, + Removal of existing bathroom, + Change of use of front room from office to living area. + First floor level; internal reconfiguration to provide two bedrooms and one bathroom, + Removal of existing terrace, garage, + Deletion of stairs at ground level to provide double garage, + Change of use of first floor level from office to bedroom with en suite. + External addition provides a new bridge connecting the first floor level of the dwelling with first floor level of the garage.

4 It was seen on the site view that there is currently a courtyard and this will be retained in the current application between the main dwelling as extended and the new garage structure at the rear of the site.

5 The height control is a maximum building height of 9.5 m and the proposed garage complies with the height control.

6 In terms of the Floor Space Ratio (FSR) there was some discussion at the hearing. The existing building currently exceeds the maximum floor space in the Development Control Plan (DCP) that is 0.92:1. The proposal seeks to slightly decrease the gross floor area of the dwelling and associated garage. The FSR was not an issue in the proceedings.

7 It is proposed that the existing dwelling house continue to be used as a dwelling house and it is situated in the residential 2A zone. The proposed development is permissible with consent.

8 The site at 35 Ocean Street, is on the eastern side of Ocean Street with a total site area of just over 200 sq m and a width of 6.4 m wide. The site is all but two removed from the corner of Queen Street.

9 The site is located in the Woollahra heritage conservation area the dwelling is listed in Sch 5 as a contributory item as opposed to a heritage item under council's LEP.

10 The locality is one that can be described as a variety of building forms and there was no dispute there has been a contribution over a number of decades from dwellings and commercial buildings that have been constructed within the precinct. This variety provides a uniqueness to the west Woollahra heritage precinct.

11 The Woollahra LEP of 1995 applies to the subject site and in granting consent to a development application cl 8 subcl (5) requires that "the consent authority shall not grant consent unless the council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development."

12 The Court was taken by the respondent to the objectives of the plan as set out in cl 2 subcl (g) in relation to heritage conservation. "1. To identify heritage items, conservation areas and to provide measures for their conservation protection and enhancement. 2. Ensure new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items and their settings and of heritage conservation areas. 3. To encourage the restoration or reconstruction of buildings and works that contribute to the character of the conservation area. 4. Enable the adaptation of existing non-residential in a manner which is compatible and sympathetic with the fabric and character. 5. To provide for the detailed control of development associated with or in proximity to heritage items and heritage conservation areas. 6. To require, when considered necessary, consideration of the statement of heritage significance or a conservation plan when dealing with an item within the area and, 7. To protect sites of archaeological significance." 13 Clearly, not all of the above are as relevant to the subject site given that it is a contributory item, as opposed to a heritage item, under the Act.

14 The objectives of the zone include to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses, 15 The matter was considered by the council and the application was refused. The reasons for refusal basically formed the 'statement of issues' in these proceedings. The statement of issues provides: 1. Whether the proposal complies with cl 22(g)(2) and cl 28(2) of the Woollahra LEP, as the proposal seeks to undertake alterations and additions to the existing garage that are considered to be unsympathetic to the heritage significance of the west Woollahra conservation area. 2. Whether the proposal complies with (c)(3) of s 321 of the Woollahra heritage conservation area in terms of inappropriate forms and their impact on settings of significant items. 3. Whether the proposed alterations and additions to the existing garage comply with (c)(8) of s 349 of the heritage DCP. 4. Whether the proposed alterations and additions to the existing garage comply with (c)(9) of the heritage DCP. 5. Whether the proposed alterations and additions to the garage comply with (c)(13) of s 349. 6. Whether the proposal complies with the objectives contained in s 349 of the heritage DCP and whether the documentation submitted is sufficient to carry out an adequate assessment in terms of the Woollahra heritage DCP.

16 The west Woollahra conservation area background document was also referred to the Court and, apart from the provisions in the DCP which I have given careful consideration to, I have also had the benefit of reading the Woollahra heritage conservation area background document to the DCP. It refers to the significance of the west Woollahra precinct as: "Comprises several early subdivisions which preceded the incorporation of the Municipality of Woollahra. West Woollahra is the most consistently Victorian precinct in the heritage conservation area and is significant for its collection of mid to late Victorian houses and corner shop buildings as well as a variety of sizes and architectural styles of its contributory buildings. In its street layout, subdivision pattern and buildings dating from its initial phase of development the precinct demonstrates a high degree of intactness. The precinct retains almost all the lots from its original subdivisions. Most lots are consistent in size but in some places have been divided or amalgamated." 17 There is also descriptions of the single storey houses that occur in the conservation area which states, "A great variety of single storey houses dating from all major periods of development. The small size of single storey houses combined with pressure for increased living space makes them some of the most threatened buildings in the heritage conservation area." 18 The objectives and controls in the Woollahra heritage conservation area DCP are designed to ensure that the significance and character of Woollahra's single storey houses is retained. The DCP further states: "Most single storeyed houses are built close to side boundaries, which means that there is usually only feasible to make additions to the rear. Alterations and additions, which affect side elevations of these buildings require an approach that retains the architectural form and character of the building and continues to allow the front section of the building to be read as a dominant form on the site. Some single storey individual houses included attics. It is generally not appropriate to add dormer windows to the roof plane facing the street. It is also important to conserve the settings and curtilage of the heritage conservation area single storey houses. In most cases the most important features of the house's setting is its front garden including the front fence, gates, path and other landscape elements and trees… In terms of height and bulk, many of the heritage conservation areas contributory single storeyed buildings are very significant because they represent a particular building type, which is characteristic of the early historic development of the area but it is now rare. In many cases buildings of differing heights and bulks were constructed next to each other during the initial period of development of the streetscape or precinct. When an addition is made to one of the heritage conservation areas contributory buildings it is also important that it does not dominate the existing building to the extent that the original form cannot be interpreted or it has a negative impact on the heritage significance of the building. It is also important that new development does not have an unduly negative impact on public and private views and vistas and allows for view sharing."

19 The reason why I have considered it necessary to go back to the 'background paper' is to put in context the single storey dwelling that currently exists on the subject site and the fact that there is no issue in terms of the alterations and additions to the subject property in terms of the impact on the building and the streetscape viewed from Ocean Street. It is noted that the subject dwelling house has a London Plane Tree located on the footpath and London Plane trees are a most significant contribution in heritage terms to the Ocean Street streetscape.

20 Returning to the background document, it contains a section on fences, gates and retaining walls and states; "In Woollahra the majority of houses with a setback from the street originally had a front fence." As is the case in this particular application or development. The document refers to contributory items and comments as follows: "As well as fulfilling a practical role the fence presented the house to the street and allowed passers by to obtain glimpses through or over the fence towards the building veranda or front garden behind...original front fences or replacement fences of appropriate materials and designs will compliment and enhance the character of a building while inappropriate fences will diminish the appearance. The street front zone of an individual heritage item contributory building or infill building is particularly important because it makes the major contribution of the building to the character and significance of the streetscape, precinct and heritage conservation area as a whole. In cases where application for alterations and additions relates to a part of the street front zone which has previously been altered and those previous alterations have resulted in the removal or covering up of original external elements and details or the addition of uncharacteristic elements or the addition of inappropriate period detail or structures the council encourages the reconstruction or restoration of those elements and details." 21 Moving to the section of on-site parking, garages, carports, driveways and the background paper states that: "Rear lanes of heritage conservation area traditionally contained paling fences and pedestrian gates of low scale and simple design. Small timber cottages and terrace houses were built adjacent to back fences. In some lanes such as Pickering Lane, James Street, Bowden Street and Pickering Lane the rear lanes of the heritage conservation area are now lined with roller doors, brick walls and garages with first floor lofts. These structures form an impenetrable barrier between private gardens and the public domain and have an adverse effect on the character of laneways. The small cottages and terraces which originally sat adjacent to fences in rear lanes are now often dominated by inappropriately large garages with first floor additions. Garages also have been built to street alignments in some properties. As well as forming inappropriate intrusions to streetscapes the construction of these structures results in the removal of street trees and the reduction of the number of on street parking spaces. In addition, the provision of new driveway crossovers often results in the loss of sections of early sandstone kerbing. The inclusion of car parking spaces, carports and garages has resulted in a reduction of soft landscaping and usable open space in the front and rear gardens of many properties of the heritage conservation area. The consequent reduction in the number of trees and the amount of permeable ground surface is increasing pressure on the system." 22 The last portion of the background paper is on street trees and comments "a significant characteristic is mature street plantings both of native and exotic species (and nominates Ocean Street with the London plane trees) to create a deciduous canopy over the entire street in that portion."

23 I considered it necessary, as I did with the DCP, to go through the background documents in terms of having regard to a holistic reading and understanding of the west Woollahra heritage precinct.

24 As I stated, there was no concern or no issue with respect to the proposal from Ocean Street. I also note the proposal has been amended from the pre DA consultation by the deletion of the dormer windows to the front elevation, the lowering of the ridgeline of the new addition to the rear of the existing roof, new skylight to the first floor of the garage and deletion of aluminium louvres to rear elevation of the garage.

25 The proposal, in terms of the first floor addition to the single storey house, will be even less noticeable than what the current alteration and addition provides in the streetscape of Ocean Street being marginally set back further from the single storey ridgeline.

26 The assessment of the heritage impact in terms of the council officer's report states that: "The proposed work includes extensive alterations and additions to the existing house. The original house has been considerably altered. However, its presentation to the street is still largely intact even though the original overall form of the house has been lost. The proposed work generally sits within the existing building envelope, the garage extension and bridge being particular exceptions."

27 The report refers to the Woollahra DCP and it states that: "The two storey additions, behind the single storied buildings, may occur provided the addition is separated from the principal form by a lightweight single storey link and that the addition is not visible from the public domain."

28 I should put the site in its overall context of the streetscape. As I stated, it is close to the intersection of Ocean and Queen Streets, which are significant areas within the west Woollahra heritage precinct. On the corner of Ocean and Queen Streets there are two heritage items, although they would appear as one heritage item, with frontage to Ocean Street and built to the boundary of those two streets (block edge development) and they are heritage items so therefore the Court must consider the impact of the proposed development on these heritage items.

29 The subject site is a single storied dwelling which is an element of surprise in the streetscape where generally there is greater density. It also has a front setback and garden, which is to be retained in the proposal.

30 The issue in the proceedings relates to the garage and the form that the garage takes, being of a modern architectural/contemporary design.

31 There is currently a garage erected at the rear laneway and it is noted that the garage, whilst the door itself is narrower than the proposed garage door, nonetheless the existing garage structure is for total width of the site. The rear boundary adjoins Kilminster laneway and it is also noted that Kilminster Lane continues past the Queen Street intersection to the south and at the end of the laneway towards the southern extremity there is a reserve and next to the reserve is a Glen Murcutt modern design dwelling house.

32 In the area of the laneway to the west there is a mixture in terms of many commercial properties that front Ocean Street, having vehicular access to Kilminster Lane.

33 From Kilminster Lane, running in approximately an east west direction, there is Pickering Lane. Pickering Lane has a context such that there are a number of cottages originally constructed as workers' cottages, single storey and quaint cottages, as well as many of the garages for the properties with frontage to Queen Street and these are rather significant and substantial properties. The cottages with frontage to Pickering Lane are generally on the northern side of Pickering Lane.

34 In terms of the local context, the dwelling that is on the corner of Queen Street has its long side boundary to Pickering Lane, the eastern side of the laneway, and this presents a brick wall and timber slated fence, horizontal slated fence for the length of its side boundary to Pickering Lane and it is in excess of 2 m in height for its entirety.

35 Whilst I have not quoted all of the controls in the DCP, I have carefully considered the provisions of the DCP. The provisions of the DCP must be given real genuine and proper consideration and they must form the focus of my assessment of the development application and in this regard I was referred to the judgment of the Chief Justice of New South Wales in the Supreme Court, the judgment of Zhang v Canterbury Council (2001) NSWCA 167 where at para 71-75 states: "The statutory power in s 80 of the Act to determine a development applicant by granting or refusing consent does not confer an unfettered discretion. It is subject to the obligation to take into consideration the matters identified in s 79C(1). This obligation is of a similar character to that which has been found or imposed by statutory obligation to have regard to identified matters… A DCP is not an environmental planning instrument. Accordingly, the requirement in s 82 that a consent authority must refuse an application that would result in a contravention of such an instrument does not apply to a DCP. Furthermore, the proscription by 76B of any development prohibited by an environmental planning instrument does not extend to a prohibition in a development control plan nor can such a plan contain a non-discretionary development standard which, if complied with, would take away consent authority's discretion under s 79C(2)… The consent authority has a wide ranging discretion. One of the matters required to be taken into account is the public interest but the discretion is at large and is not unfettered. DCP 23 had to be considered as a fundamental element in or a focal point of the decision making process, a provision so directly pertinent to the applicant, consent before the council as was cl 4 of DCP 23 was entitled to significant weight in the decision making process but was not of course determinative."

36 It is important in an assessment of a development application that the council's controls are carefully considered and it is also important that the DCP guidelines are carefully considered. It is also important that a holistic reading of the controls and how they fit together is understood to have an understanding of the relationship between the various provisions of the DCP as they relate to the development. The DCP does not replace the need for a merits assessment of a development application in its context and that is why I have gone to great pains to point out the context in which I must consider this development application.

37 This context is in terms of the importance of the cottage being a contributory item to Ocean Street. And it is in the context of the Kilminster Lane, which does not provide the same context as Pickering Lane in terms of cottages that have frontage to that laneway. Kilminster Lane is very much a service lane, albeit that many pedestrians would walk down Kilminster Lane but at the same time in the block it does not provide a frontage to any dwellings as such.

38 It is in this context and in the context of what we see in the laneway today, I have to consider the DCP provisions and the merits of the development application before me.

39 Whilst I will continue to state my reasons I will say at this point in my judgment, being a verbal judgment, that I have considered that it is appropriate in the context of all the controls to approve the subject development application.

40 The DCP for Woollahra contains design suggestions providing in some instances for rather prescriptive requirements of what would be appropriate in council's view of the laneway development and double garages on the rear lane.

41 I will also comment in that clearly where there is a consistent morphology of terrace buildings, as we see in Paddington Street and other areas of Paddington and indeed in some areas of Woollahra, where there is a consistent form of development the rear alteration of buildings can undermine the heritage importance of laneways. However, in the situation here I am satisfied that the design proposal is to provide double car accommodation and loft bedroom accommodation is not inconsistent with the character of the area and will not detract from the heritage significance of the west Woollahra precinct.

42 Development Control Plans can be site specific and where they are site specific clearly specific details are more fully and comprehensively addressed and, indeed, building envelopes may be prescribed.

43 The Woollahra Heritage Conservation Area DCP is a comprehensive document. However, it is not one that has looked at each individual site and it recognises the great variety that does occur within the area and it does provide guidelines for development and one must have regard to the conservation area in terms of the important aspects and in terms of the coherency of the conservation area and whether a proposed development will undermine that significance.

44 Yes, there are always alternatives in terms of providing additional accommodation on a site and applicants may propose designs which are different. In assessing a design which is different, that in itself does not mean it should be refused. Clearly we could see on the view that the Glen Murcutt house at the end of Kilminster Lane was in fact a different form of development but nonetheless a contributory part of the streetscape.

45 The proposed development, as we see in the plans prepared by Engelen Moore, will also be a form of development that in my assessment whilst it may appear to be 'different' it is a design, in my assessment that is not inconsistent with an overall reading of the DCP. Furthermore it will not detract from the heritage significance of the area and it is of a form that will be compatible with the area.

46 When assessing developments it is important for the aims and the objectives of the LEP and of the DCP be in the forefront of one's mind. In terms of consistency, consistency can be looked at in terms of: is the development compatible and is it harmonious. And clearly, development that is 'different' that is of a different genre, can be compatible and harmonious.

47 In a laneway which does have uniform morphology of the built form then a contemporary design, as we see in these plans, may not be appropriate. But in the circumstances of this case the proposed garage and loft provides for a resolution that, in my assessment, warrants approval on its merits having regard to its context.

48 Contemporary architecture design has been referred to in previous judgments of the Court cannot disregard its context and it must respect its neighbours and just because a building or dwelling or other facilities may be of good design in themselves they must also fit into the context. And in the circumstances of this case the proposed development will harmoniously co-exist in the 'lane-scape'.

49 The issue of precedent is a concern to many councils and rightfully so. However, I am of the opinion that the approval of this design or resolution to garaging and additional accommodation for the small dwelling is appropriate and even though it is within a conservation area one must look at its context in Kilminster Lane.

50 As I stated earlier there is no issue as to the alterations to the dwelling house. At the same time in my overall merits assessment of there development application I must look at fit and appropriateness of the total development in its context. 51 In terms of Ocean Street the importance of this single storey dwelling as a contributory item will continue to make a major contribution to the heritage conservation area. In terms of viewing the rear addition, that is the bridge to the loft and the double garage, while the bridge and the garage will be visible from certain parts of Queen Street it is an appropriate resolution in my assessment to retain the dwelling house and courtyard area footprint and provide the additional bedroom area above the garage as proposed. This maintains the cottage to Ocean Street.

52 The bridge and, as I stated, part of the garage will be visible from Queen Street. However, in the overall context it will not adversely impact on the heritage conservation area. During the proceedings the applicant has agreed to the addition of louvres on the southern elevation, the same as on the northern elevation, for the bridge connection and also there has been agreement as to the colour scheme for the proposed development. The latter is an issue that council raised earlier and it should be addressed in all development applications for heritage conservation areas. That is, a palette or sample board of materials, colours and finishes, even if belatedly has now been provided. The materials may be of a contemporary nature and this is consistent with the Burra Charter for new materials in contemporary design in heritage conservation areas. The new element of the bridge form and the garage loft structure will be seen with the heritage items in the foreground when viewed from Queen Street.

53 For certain heritage buildings the addition of modern or contemporary architecture may not always be appropriate but for this rear lane, in its context, it is most appropriate in the Court's assessment.

54 For the Court record, I should state the objectives of the DCP because clearly I have given them my focal attention in the assessment of this application. The objectives of the DCP are: (a) to facilitate the implementation of the objectives of the heritage conservation contained in the LEP, (b) to acknowledge and conserve heritage of Woollahra, (c) to encourage the retention of appropriate development of significant items, (d) to provide controls to protect the identified heritage values and significant character and encourage contemporary design that responds appropriately to that character and (e) to enable appropriate and expert consideration of proposed developments to be made by applicants and the council, (f) to encourage and promote public awareness appreciation of the heritage area, (g) integrate planning design and decision making associated with development by the private and public sectors and (h) to enhance amenity and heritage values within the Woollahra heritage conservation area.

55 I am satisfied the proposed development is consistent, and compatible with the objectives of this plan, including to provide controls to protect the identified heritage values and encourage contemporary design that responds appropriately to that character. In seeking to encourage contemporary design the controls cannot be so prescriptive so as to prevent what would be innovative contemporary architecture.

56 The West Woollahra Precinct has a number of characteristics, which I read from the background paper and clearly that has been brought forward in the DCP itself. The ones that are more relevant to this proposal are garage and carports located in rear lanes rather than along street frontages. The few garages facing primary streets are generally intrusive and, the description talks about the varied scale and building types within Woollahra itself and, this provides for the character of the West Woollahra Precinct rather than the consistent Victorian terraces as we find in Paddington. 57 Side by side with the single storey dwelling that we have on this site there is a two-storey stone block edge development on the corner of Queen Street and Ocean Street that is a heritage item. The LEP requires that I must have consideration to a heritage item and I am satisfied that the proposed development is compatible with and will not detract from the heritage item and its significance in the heritage conservation area.

58 With respect to parking and garages the Court was taken to the provisions in the DCP. The first objective is: "To ensure that residential buildings rather than vehicle access and parking structures remain the dominant elements in the streetscape." The proposed development in terms of Ocean Street will satisfy this requirement. 59 "2. To ensure that on-site vehicle parking is not provided at the expense of soft landscaping." The proposed development does allow for soft landscaping both in the front setback area of the dwelling to Ocean Street and in terms of the internal courtyard. 60 "3. Maintain and enhance the character of laneways where unsympathetic earlier development such as high brick walls and full width garages has eroded the quality of these urban spaces." In this regard the proposed development, whilst it does provide for a double garage, with no central pillar I am satisfied in the circumstances this is acceptable to increase manoeuvrability and provide parking for two vehicles, to comply with council's code for parking, the proposed development achieves this. In terms of the 'lane-scape', it does not have the character of dwelling houses and clearly one must have regard to the context in which I see the double garage and the adjoining properties and the proposal will not be out of character.

61 There are many double garages in the laneway and I do understand council's desired future character that laneways do not become "impenetrable in terms of garage doors." However, in my assessment of this application, it is satisfactory having regard to: the fact this is a service laneway for a number of commercial properties; the fact that there are no dwelling houses that front the laneway; and there is no uniform morphology in terms of terrace buildings that are obstructed by the proposed garage.

62 Where laneways provide frontages to dwellings and where laneways are also a place for social interaction in terms of rear gardens this is important objective for the desired future character. However in the circumstances of this development application as described above this would not warrant refusal of the application.

63 The other objective is to allow safe and convenient vehicle access and to minimise vehicle and pedestrian conflict. Clearly the garage as proposed, being a wider door than council's guidelines in its DCP, given the relatively narrow width of the laneway in this location, the proposal provides greater manoeuvring than could be achieved with a single garage doors with a pillar down the centre. 64 "5. To limit loft structures over garages to appropriate locations."

There was no issue that a loft could not be provided in the subject laneway and the laneway is one that is appropriate for loft structures and it is also, on balance, the appropriate resolution of providing additional accommodation for the retention of the cottage form facing Ocean Street. In particular, the controls provide for: 65 "If a property has an accessible rear lane any vehicle access is to be from the rear." Clearly this satisfied by the proposal. 66 "Where rear lane parking is permitted and the property is wider than 4.25 proposals must provide a visual connection between the private and public domain by the inclusion of a gate with a minimum width of 900 mm and a maximum height of 1.8 m. Planting along the rear boundary should be incorporated where possible. Garage doors and sections of solid wall should be a minimal width. Garage doors must open onto the property." As I stated, the subject property is wider than the 4.25, being 6.4 m but in the circumstances of this development and its site context it is an appropriate resolution. 67 "On rear lane frontages elements which create excessive isolation between the public and the private domain such as high blank walls and excessively wide garage doors are not acceptable." Once again the context of this laneway, in my assessment, does not require the provision of the interaction as would be required where there are cottages fronting laneways. 68 "(C)(13) Loft structures over garages will be permitted only in the west Woollahra or Grafton Street precincts and there is no issue that a loft can be provided." The DCP also states that the form, bulk and scale of the structure should not overwhelm the existing building on the site. Clearly the proposal does not overwhelm the existing dwelling which has significance as a contributory heritage item to Ocean Street. The proposed development in terms of its form, bulk and scale is not inconsistent and is compatible with the heritage conservation area.

69 There is be no significant impact on the amenity of the neighbouring properties in terms of visual and acoustic privacy and sunlight access.

The Court inquired as to whether the overshadowing of the bridge structure had been considered and the council was satisfied that overshadowing was not an issue for the property to the south and that solar access will still be satisfactorily retained. Although I note it will be less than currently received.

70 The DCP provides a definition for contributory building, "a building or its setting which contributes to the heritage significance of a conservation area but is not listed as a heritage item.

71 The Court has considered the principle that was articulated in the judgment, Totem Queens Park Pty Limited v Waverley Council [2004] NSWLEC 712 where at para 42 Commissioner Bly said: "Good architectural design does not exempt a building from being assessed for its impact on neighbours and its compliance with the objectives and requirements of any relevant local environmental plan and development control plan."

72 I have assessed the proposal in terms of consistency with the objectives of the zone and the LEP itself and in terms of the heritage provisions and the proposed development in my assessment is satisfactory. And in terms of the development control plan I have comprehensively looked at the DCP in terms of a holistic reading and whilst there may be certain provisions of the DCP that are not strictly adhered to, this is not the test. The test is whether the overall resolution and design is one that is not inconsistent with the conservation values of the West Woollahra Precinct.

73 The Court was referred to the matter Architects Marshall v Lake Macquarie Council where the Senior Commissioner noted a planning principle for contemporary architecture and the weight given to expert opinion. In this regard it should be tested against two main criteria. That is, "whether the opinion is mandated by a design code such as a residential flat code or the Burra Charter or alternatively reflects the subjective preferences of a local community expressed in a local policy such as a DCP." The other criterion is "whether the opinion is a widely accepted professional view or at least a view held by a sizeable group of professionals rather than one individual opinion". I have assessed the proposal comprehensively and the DCP has been a focal point and central to my consideration.

74 I have also had regard to the principles in the Burra Charter. In terms of conservation and new work, that is, article 22, "if its siting, bulk, form, scale, character, colour, texture and material are appropriate but imitation should be avoided, that is, for new work as additions to the place and new work should be readily identifiable as such." The proposal satisfies this. I have also looked at the other articles in the Burra Charter and I am satisfied that the proposed development is one that is not in conflict with the Charter.

75 I do not consider that approval of this development application should be seen as a precedent. Clearly, the context of this proposal is unique in terms of the adjoining commercial properties, the property to the east with its boundary fence, and the fact that there are no dwellings with frontages to this part of Kilminster Lane. Also on balance one must look at the merits of the overall development.

76 Therefore, on the basis of my assessment the orders of the Court are: 1. The appeal, in respect of the property known as No. 35 Ocean Street, Woollahra is upheld. 2. The development application submitted to Woollahra Council and as amended is approved subject to the conditions contained in Annexure A. 3. The exhibits, with the exception of A, B, E, G and 12 are to be returned.

J S Murrell Commissioner of the Court ljr

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