Kokkinis v Woollahra Municipal Council

CASES CITED: Chris Kokkonis trading as Ergo Architecture and Interiors v Woolllahra Municipal Council [2006] NSWLEC 586

APPLICANT Mr P. McEwen, SC Instructed by S. Friedman of Harris Friedman LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Simington, solicitor of Lindsay Taylor Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10173 of 2007 C Kokkinis v Woollahra Municipal Council

JUDGMENT Background. 1 This appeal was lodged against Councils' refusal of a development application for alterations and additions, including a basement garage for an existing single storey dwelling at 54 Fletcher Street, Woollahra. The existing dwelling is identified as a Contributory Item, together with 56 Fletcher Street, in the Fletcher Street Precinct Conservation Area.

2 The issues initially identified for the appeal are summarised as follows: o The scale and bulk of the proposed addition would dominate the principal contributory dwelling and will be detrimental to its setting and the Fletcher Street precinct, contrary to the requirements of WLEP and the WHCADCP. o The garage and its access would be located beneath the principal dwelling and result in the raising of the dwelling. The garage would be detrimental to the setting of the existing cottage and to the streetscape and heritage significance of the contributory item. o The setback of the addition from the rear boundary would be inconsistent with the predominant rear setback of development in the locality and adversely impact on the solar access to 52 Fletcher Street. o The existing sandstone fence is a contributory and characteristic element and its removal would be detrimental to the conservation area and Fletcher Street precinct. o Excessive excavation.

3 The Court was informed that a similar proposal had been refused by Hoffman C in the appeal Chris Kokkinis trading as Ergo Architecture and Interiors v Woollahra Municipal Council [2006] NSWLEC 586.

The Site. 4 The site is located on the southern side of Fletcher Street to which it has a frontage of 6.095 m and a total area of 191.7 sq m.

5 There is a single storey timber cottage erected on the site, which forms the eastern of a pair of cottages (the adjoining cottage is No 56 Fletcher Street). The sites ground level is approximately 1.2m above the footpath level and arises gently to its rear southern boundary.

The Proposal. 7 This proposal is for: o Alterations and additions to the existing dwelling consisting of the refurbishment of the existing single storey cottage, o New basement providing an off-street car parking space, o New two-storey addition to the rear existing dwelling (as previously approved), o Swimming pool.

Planning Controls. 8 Woollahra Local Environmental Plan 1995 (WLEP). Under which the site is zoned Residential 2 (b) and the proposal is permissible with consent. The site is located within a Heritage Conservation Area.

9 Woollahra Heritage Conservation Area Development Control Plan 2003 (WHCADCP). The site is within the Fletcher Street Precinct and the cottage has been identified as a Contributory Item, together with the neighbouring cottage at No 56 Fletcher Street. It is identified as a Victorian House in the DCP. A Contributory Item is described as: a building, work, archaeological site, tree or place and its setting, which contributes to the heritage significance of the conservation area. The contributory properties may have historic, aesthetic, social or scientific values but will most typically have historic and/or aesthetic significance including streetscape value.

10 The DCP contains the following relevant controls: o Part 2.3: Desired future character of Woollahra Heritage Conservation Area is one that; - maintains the residential character that has been predominant from the earliest phase of its development, - maintains the character and significance of its identified precincts… o Part 3.2.1: Conservation of significant items and group significant items; o Objectives 01 To ensure those significant items, outbuildings and their curtilages and settings are retained. 02 To ensure that the distinctive shared characteristics of significant groups of buildings are retained and enhanced. + Controls C4 Remnant elements of the settings of significant items, including but not limited to gardens, mature trees, archaeological deposits, original front fences, pathways, and contributory landscape elements are to be retained, whether or not they located on the same site as the item. o Part 3.2.2: Original materials, finishes and colours. o Part 3.2.3: Alterations and additions to significant items: + Objectives 01 To retain the original built form characteristics of significant items. 02 To ensure alterations or additions to a significant item are designed: - to be consistent with the original architectural style, form, massing, details, materials and finishes of the item, - not have an adverse impact on the curtilage and setting of the item. 03 To ensure that the various heights and setbacks of significant buildings within the streetscape are retained. + Controls. C6 Excavation for basement levels will not be permitted below significant items or in the gardens unless the site slopes to the rear and a basement level can be achieved by excavating no deeper than 1.5 metres. The outer edge of excavation piling and all subsurface walls must not be less is than 1.5 metres from any boundary. No excavation is permitted where underpinning of significant fabric would be required. o Part 3.2.4 Traditional building elements. o Part 3.2.5 Significant landscape elements. o Part 3.2.6 Original fences, gates and retaining walls. + Objectives 01 To retain and conserve original fences, gates and retaining walls to significant items. 02 To retain and conserve the original sandstone retaining walls that are characteristic of precincts within the HCA. o Part 3.4.3 Building location and built form + Controls C7 Where the existing ground level slopes and adjoining properties have basement levels, a basement level may be permitted in new development but must not be used as a garage at the street front. C9 The outer edge of excavation, piling and all subsurface walls shall not be less than 1.5 metres from a front, side or rear boundary. o Part 3.4.4 Building height, form, bulk, scale and character; The DCP provides a sliding scale for FSR, which results in an allowable FSR in the order of 0.95:1 for this dwelling house. o Part 3.4.9 Parking and garages + Objectives 01 To ensure the residential buildings, rather than vehicle access and parking structures, remain the dominant elements in the streetscape. 02 To ensure that on-site vehicle parking is not provided at the expense soft landscaping and useable open space. + Controls C1 The controls restrict on-site parking where: - the parking of a vehicle may have a detrimental impact on the amenity of an adjoining property, the health or form of a significant tree, the character of a streetscape or laneway or the significance or architectural character of a building on the site or on an adjacent site - extensive areas of excavation are required - a driveway cannot comply with the maximum gradient of 20% with a Transitions at the top and bottom in accordance with AS 2890.1(1993) C3 No additional vehicle crossovers will be permitted off street frontages C4 No parking is permitted under the principal building form of a dwelling C5 No garage is a to be introduced into original retaining walls built to the street alignment. The Evidence. 11 In response to the issues, evidence was presented by : o Mr R Staas, consulting heritage architect for the respondent, o Mr D Lukas, councils senior assessment officer, o Mr G Brooks, consulting heritage architect for the applicant, and o Mr L Fletcher, consulting town planner for applicant.

12 As I noted initially, there was a previous development application for alterations and construction of a basement garage at this property, which was determined by way of refusal on appeal. That application proposed a larger basement garage and required the raising of the dwelling by 600mm. In determining that matter, Commissioner Hoffman concluded: " 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 the development control plan has been widely exhibited and consultant 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. 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-compliance it is not suitable for approval, although, as the respondent submitted, other alternatives may exist."

13 Consequently, the applicant has undertaken amendments to the proposal, so that the current alternative includes: o A reduction in the size of the basement garage area. o Raising the level of the cottage by 330mm, as compared to the previous raising of 600mm. o Removal of the front sandstone wall and replacement with a painted timber picket fence, incorporating a similar style entry gates to the basement garage area. o Other detailing matters in response to the issues raised.

14 It is apparent to me from the evidence that this detailing and imposition of relevant conditions can most likely address some of the issues. However, the threshold issue, as agreed by the heritage experts, relates to the impacts arising from the raising of the cottage and the inclusion of a car entrance and basement garage, in terms of the provisions of the DCP. I also accept, that this is the critical issue.

15 Consequently, the heritage experts agreed on the following matters: o The existing house is identified as a Contributory Item in the conservation area and is one of two adjoining cottages of similar design. o Development affecting a Contributory Item is specifically controlled in Section 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6, 3.3.1, 3.4.3 & 3.4.9 of the Woollahra HCA DCP. o There is current approval for a residential development at the rear of the existing building and alterations to the front retaining wall. It is apparent that the demolition of the rear of the house has been undertaken in accordance with that consent. o Previous Court proceedings have established some principles in regard to the development of the site, particularly that the rear of the house can be redevelopment to a significantly larger scale than that which existed or might be regarded as traditional in the context of the DCP Objectives and Controls. o The immediate setting of the subject house is mixed and many of the surrounding buildings have little or no heritage significance. The principal outstanding heritage issues in this case relate to the provision of basement level parking with access from Fletcher Street and the associated excavation and raising of the level of the front portion of the house by 330 mm for the extent of their potential impacts on the heritage significance of the pair of adjoining contributing buildings and the surrounding Conservation Area. 16 However there are significant areas of disagreement between the heritage experts, in terms of the impacts on the heritage significance of the Heritage Conservation Area. Mr Staas says that the garage component of the application would have a significant and detrimental impact on the presentation of the two adjoining cottages and the contribution to the wider conservation area, in contravention of the objectives and controls in the DCP. He does not consider it reasonable to allow the development on the basis that the area already contains similar features.

17 Instead, Mr Staas maintains that a reasonable level of development for the site was in the form previously approved, which did not incorporate the basement garage. He says that this proposal is unacceptable because: o the contributory character of the two cottages depends in part on their being in an original relationship with each other and their sites and the proposed change in floor level and introduction of basement garaging is intrusive and in contravention of the aims, objectives and controls in the DCP. o the removal of the front masonry wall will have a cumulative negative impact on the streetscape. 18 Against this, Mr Brooks considers that the inclusion of the undercroft garage is within the extent of change that can be absorbed without adverse impact on the conservation area. Whilst the house is regarded as being a contributory item in the conservation area, the proposal would only result in a marginal alteration to the streetscape. Even though the two adjoining timber houses create a particular imagery in their immediate streetscape, they represent just two relatively isolated houses within a very mixed and larger context. Furthermore, he says they do not define any particular character within the local streetscape other than simply because of their presence among a group of other buildings.

19 Mr Brooks also supports the application on the basis that the undercroft garage is located at close to the level of the street and is screened by the nature of the proposed treatment of the garage below the front veranda, so that the visual impact of the current scheme is less than that of the previous proposal. Any likely visual impact in the conservation area will be limited to a close range view of the property and "will be effectively imperceptible from the majority of the streetscape in this part of Fletcher Street". Consequently, he says that when the impact of the new garage is considered in the context of the local streetscape and not just in relation to the subject house, then the impact of the new garage is severely limited.

Conclusions 20 Having considered the evidence, the submissions and undertaken a view, it is apparent that the threshold issue concerns the impacts arising from the inclusion of the basement garage. Insofar as this form of development of the cottage was previously refused, the reduction in the raised level of the subject cottage mitigates to some extent concerns raised previously.

21 Notwithstanding this, the proposal should still demonstrate reasonable compliance with the development controls, particularly those contained in the WHCADCP, considering the Contributory Item status, along with No 56 Fletcher Street. In this regard, I note that these properties are identified as Significant Items in Appendix K and that the heritage controls do not clearly distinguish between heritage and contributory items. Although it seems that the aesthetic and streetscape impacts are of particular concern with contributory items. 22 It is apparent from the view that the two cottages are somewhat isolated and have been surrounded by other development, which is unsympathetic to the conservation area. Therefore, it seems to me whilst these cottages retain their contributory heritage status, the relationship between the two cottages is critical, in terms of their contribution to the streetscape, as stated by Mr Staas.

23 However, the proposal would marginally change the relationship between the two cottages, due to the need to raise the level of No 54 to accommodate the basement garage. This does not comply with the provisions of Part 3.2.3, which requires the height and setback of significant buildings to be retained. Whilst the effect may be marginal, nevertheless I consider it is a negative aspect of the proposal. 24 The need for this raising of the cottage level to accommodate the basement garage then creates more critical non-compliances with the controls, in my opinion. Part 3.4.9 control C4 does not permit parking under the principal form of a dwelling.

25 Then, where alterations are allowed, the controls in Part 3.2.3 C6 restrict excavation, except where the site slopes away from the street and the proposal does not satisfy this requirement. The non-compliance with C4 and C6 are negative aspects of the proposal, in my assessment. Presumably, these controls are to maintain the streetscape impact of contributory items, by avoiding garage intrusions into the primary streetscape.

26 This objective is further reinforced by the controls in Part 3.4.9 C3, which does not permit additional vehicle crossovers. Also, C5 does not allow a garage to be introduced into original retaining walls. Whilst I accept there is some uncertainty about originality of the front wall, nevertheless I consider its retention better maintains the items contribution to the streetscape, rather than a new picket fence, incorporating the gate opening to access the garage. I consider these non-compliances significant in the failure of this application. 27 The controls also contain objectives, which require designs that do not have an adverse impact on the curtilage and setting of the item. However, the inclusion of the garage necessitates excavation within the front setback (landscape area) for the construction of a paved driveway. This results in a considerable reduction in the available soft landscape area in the front of the cottage, particularly taking into account the sites minimal frontage of 6.09m. Consequently, a significant part of the elevated front lawn/garden area will be removed, which I consider adversely impacts on the curtilage and streetscape.

28 Accordingly, I am satisfied that the cumulative effect of the aforementioned non-compliances with the heritage and conservation controls warrants refusal of the proposal. 29 Notwithstanding this, I also note there are some other planning non-compliances of significance. In particular the allowance of the new rear dwelling component results in an FSR in the order of 0.98:1, which also marginally exceeds the allowable control. Whilst I accept the experts opinion that the inclusion of this rear addition is acceptable, it does result in a noticeable change in the relationship between No 54 and 56. Consequently, if the additional alterations proposed at the front of the cottage are also allowed, I consider the garage and driveway will have a dominating effect and the heritage and aesthetic contribution of these items to the area and streetscape will be significantly diminished, in the absence of any positive public benefit.

30 In the ultimate, I consider the proposal represents an overdevelopment of the site, which results in it not demonstrating adequate compliance with the development controls, relative to the current heritage status of the cottage. This conclusion is consistent with the opinions of Mr Staas and Mr Lukas, on which I rely in refusing the application. 31 Court Orders. 1 The appeal is dismissed.

2 Development consent for alterations and extensions to the existing cottage at No 54 Fletcher Street, Woollahra (as detailed in DA 869/2006/1) is refused.

3 The exhibits may be returned except for 4, 5, 6, 7, A and B.

      R Hussey
      Commissioner of the Court
      ljr

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