In and Out Pty Ltd v Woollahra Municipal Council

LEGISLATION CITED: Woollahra Local Environmental Plan 1995

DATES OF HEARING: 24/05/2005 EX TEMPORE JUDGMENT DATE : 05/24/2005

APPLICANT Mr Green, solicitor of Pike Pike & Fenwick

RESPONDENT Mr Connell, solicitor of Michell Sillar

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11314 of 2004 In and Out Pty Limited v Woollahra Municipal Council

JUDGMENT 1 This is an appeal against the refusal by Woollahra Municipal Council (council) of a development application (885/2002/1) to demolish an existing single-storey house and construct a new two-storey house at 38 Spicer Street, Woollahra (the site). The parties have agreed to seek consent orders from the Court. 2 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP1995). The proposal is permissible with consent. The site is not identified as a heritage item but is within the Woollahra Conservation Area under the LEP. Clause 28 requires consideration of the extent to which demolition of the existing house and the construction of the new development would affect the heritage significance of the conservation area. 3 Woollahra Residential Development Control Plan (DCP) and the Policy for the Control of Changes to Facades and Alterations to Buildings (Façade Policy) are also relevant. The parties agreed that weight should also be given to Woollahra Heritage Area Development Control Plan 2003 (DCP 2003). 4 The hearing was conducted on-site where I heard expert evidence from: · Mr S Harding, town planner and court appointed expert · Professor R Mackay, heritage consultant and court appointed expert · Mr R Staas, heritage consultant for the applicant. 5 A statement of evidence of Mr S Wiltshire, structural engineer for the applicant, was tendered and referred to by both Mr Staas and Mr Mackay. 6 I also heard evidence from the following residents: · Mrs Carter, 36 Spicer Street · Mr G Prisk, 7 Morrell Street · Mrs J Wright, 3 Morrell Street · Ms J Burton-Taylor, 27 Spicer Street · Ms J Milne, 29 Spicer Street.

7 Amended plans were tendered at the hearing which addressed a concern raised by Professor Mackay relating to the asymmetrical appearance of the front of the building. These plans are the subject of the appeal. 8 The issues between the parties were resolved. The remaining issues were the concerns of the residents which can be summarised as: (1) whether the demolition of the existing cottage would have an adverse impact on the streetscape and the heritage conservation area, (2) whether the new house is appropriate infill development, and

(3) whether the proposed development will have an adverse impact on the amenity of the adjoining residents, particularly loss of sunlight to the north facing windows of 36 Spicer Street and the impact of bulk on 3 Morrell Street.

Demolition and impact on the streetscape and conservation area 9 The heritage experts agreed that the existing cottage was a contributory item in the Woollahra Conservation Area and that, as stated by Professor Mackay, "contributory items within conservation areas should be retained and conserved". 10 Mr Wiltshire undertook a detailed assessment of the condition of the building and concluded that 59 % of the original fabric is already lost or unsalvageable. On this basis both Mr Staas and Professor Mackay accepted that retention of the existing cottage was not a meaningful conservation option. 11 The residents considered that the house should be retained. Mr Prisk stated that the assessment in the Wiltshire report was not based on the relative significance of the fabric that could be retained. He stated that a significant proportion of the original cedar weatherboards were intact and could be retained. 12 Mr Staas and Professor Mackay were of the opinion that due to the extent of structural damage if the building were to be retained, it would effectively need to be dismantled and rebuilt utilising what original fabric could be salvaged. This would result in essentially a replica building. Both Professor Mackay and Mr Staas considered this was not an ideal conservation outcome. 13 Ms S Milne stated that her house had been rebuilt with little original fabric remaining and a substantial rear addition and she considered this to be a model for redevelopment of the site. I note that her dwelling is masonry and is part of a cohesive group and that while large parts of the interior may have been replaced, the exterior façade and its relationship to the adjoining buildings has been retained. 14 This is not the case with No. 38. It is a freestanding timber cottage that has been reclad in fibro. It is not part of a consistent or identical group of buildings. The expert evidence before me, which I accept, is that due to the structural condition of the building, it would need to be dismantled and rebuilt. 15 The question then becomes one of whether there is a compelling conservation argument that the cottage should be rebuilt in the same form as currently exists on the site. I accept the evidence of the experts that reconstruction of the dwelling in its original form is not required as there is little of the original fabric that can be retained and the building is not part of a consistent group that would require strict control of the form of a replacement building. 16 I find that while it is regrettable that a contributory item in a conservation area should be demolished, that this results from its structural condition and the demolition of itself would not have an adverse impact on the significance of the conservation area.

Infill development 17 The residents were concerned about the appropriateness of the replacement building. Mr Prisk stated that part of the character of Spicer Street was the manner in which the houses stepped down the street, reflecting the topography of the land. He said that there was insufficient change in the roof plane of the proposal and the adjoining house (No 360) to achieve this effect. Mr Staas and Professor Mackay considered that the difference in ridge height would be sufficient to maintain the stepped character of houses in the street. Other residents considered that the building was too high and bulky and inappropriate in the streetscape, a view not shared by the experts. 18 As stated above, the site is not part of a consistent group, No. 36 to the south is a brick cottage of comparable scale and date, but has been heavily altered. Further to the south there are a group of two-storey terraces. To the north is 7 Morrell Street, which presents its single storey side elevation to Spicer Street. The street has a character of one and two-storey brick and timber dwellings that are a mixture of freestanding cottages and terraces. There are groups which are consistent in their style interspersed with individual buildings. While the street has a definite character, it is not as a result of a consistent building form, but rather a compatibility of different building forms. 19 The question is whether the proposal is compatible with these different building forms, which have evolved over different periods of time. 20 The proposal at its street frontage is single storey with a very simple form, and a pitched corrugated roof reminiscent of other workers' cottages in the street. The carport and steel gate are set back from the street and the frontage of the cottage. There are many ways to design an infill development on the site and I acknowledge that further stepping of the roof plane would accentuate the stepping of the street. However, I do not consider that the current roof form would render the proposal incompatible with the street. I accept the heritage experts' evidence that it is an appropriate infill development that will not have an adverse impact on the heritage significance of the conservation area.

Residential Amenity 21 The house is built to its southern boundary. The rear of the house is two-storeys within a roof form. No. 36 is setback approximately 900 mm from its common boundary and has three north-facing windows into an open plan living area. This area also has windows to the west, which face its rear garden. Mrs Carter's concern was about the loss of sunlight to these northern windows. 22 In considering this issue, Mr Harding concluded that: On balance the dwelling at 36 Spicer Street, will still maintain reasonable levels of solar access. The rear yard terrace and rear rooms all receive good sunlight and amenity. The windows on the northern façade will all receive solar access during the year, apart from a short period of time during the winter solstice" 23 Mr Harding did not consider it reasonable for further changes to be made to increase solar access to these windows. In his opinion, the indent of the north western corner of the first floor of the proposal, the slope of the roof and the reduction in height along the southern boundary meant that the proposal had a similar or lesser impact than a building setback 1.5 m from the boundary, as required by the DCP, with a gable roof form. 24 I accept Mr Harding's opinion while the reduction in northern sun to Mrs Carter's living area is of concern, the room will still receive an acceptable level of solar access and it is therefore not a reason to refuse the application. 25 The proposal is built to the rear along part of its northern boundary. Mrs Wright, 3 Morrell Street, was concerned about the impact of the bulk of the building and considered that the upper floor should be setback 1.5 m as required by the DCP. 26 Mr Harding considered that the bulk was acceptable as it adjoined a narrow service area and part of the house at 3 Morrell Street. The main outdoor area of the proposal adjoins the main north-facing outdoor area of 3 Morrell Street, and consequently there is no building bulk or resultant loss of solar access to this area, which Mr Harding considered to be of greater benefit to 3 Morrell Street, than a setback. 27 I accept that the bulk of the proposal where it adjoins 3 Morrell Street, is acceptable and that setting it back 1.5 m would do little to alter the appearance of bulk when viewed from the Wright's property. Orders 28 For the above reasons, I make the following consent orders sought by the parties: 1. The appeal is upheld 2. Development Application No. 885/2002/1 for the demolition of an existing dwelling and the erection of a new dwelling at 38 Spicer Street, Woollahra, is granted development consent subject to the conditions set out in Annexure A 3. The exhibits, except exhibits 1, 2, 4, 11, C and D, may be returned 4. No order as to costs.

      Annelise Tuor
      Commissioner of the Court
      ljr

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